Social Security Seeking Comments On Consideration Of Pain

     From an Advance Notice of Proposed Rulemaking which Social Security will publish in Monday's Federal Register:

We are soliciting public input to ensure that the manner in which we consider pain in adult and child disability claims under titles II and XVI of the Social Security Act (Act) remains aligned with contemporary medicine and health care delivery practices. Specifically, w e are requesting public comment s and supporting data related to the consideration of pain and documentation of pain in the medical evidence we use in connection with claims for benefits . We will use the responses to the questions below and any relevant research and data we obtain or receive to determine whether and how we should propose revisions to our current policy regarding the evaluation of pain.

     Remember, Democrats will control the House of Representatives in three weeks. Could the Social Security Administration go ahead with something terrible? Sure, but don't bet on it. Even if they try, they probably can't complete action on it before January 20, 2021.

Proposed Regulations On Consideration Of Pain

     The Social Security Administration has asked the Office of Management and Budget (OMB), which is part of the White House, to approve publication of proposed an Advanced Notice of Proposed Rule Making (ANPRM) on Consideration of Pain in the Adult Disability Determination Process. Here's the only explanation available of the proposal:

Our regulations set a two-step process for evaluating pain in disability claims, at which we identify the existence of medical evidence supporting pain and evaluate the intensity of the alleged pain respectively. With this ANPRM we seek to solicit public comment on these existing rules to determine whether they align with current medicine and health care research.

     This isn't even a proposal at this point. They'll only be seeking comments on what a proposal should be.

Two Social Security Rulings Rescinded

     From a notice published by Social Security in the Federal Register (footnote omitted):

   ... In accordance with 20 CFR 402.35(b)(1), we give notice that we are rescinding the following SSRs [Social Security Rulings]: 

• SSR 96-3p: Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe.
• SSR 96-4p: Titles II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations.

These SSRs are unnecessarily duplicative of SSR 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, which was applicable on March 28, 2016 , published in the Federal Register on March 16, 2016, 81 FR 14166. SSR 16-3p, a more comprehensive statement of our policy on symptoms, explains how we evaluate the extent to which alleged symptoms limit an adult’s ability to perform work-related activities and a child’s ability to function effectively in an age-appropriate manner. ...

Should I Worry About My Clients Being Thrown Into This Briar Patch?

     The Clinical Neuropsychologist, a scientific journal, has published Official Position of the American Academy of Clinical Neuropsychology Social Security Administration Policy on Validity Testing: Guidance and Recommendations for Change. This is their summary of the paper:

The milestone publication by Slick, Sherman, and Iverson (1999) of criteria for determining malingered neurocognitive dysfunction led to extensive research on validity testing. Position statements by the National Academy of Neuropsychology and the American Academy of Clinical Neuropsychology (AACN) recommended routine validity testing in neuropsychological evaluations. Despite this widespread scientific and professional support, the Social Security Administration (SSA) continued to discourage validity testing, a stance that led to a congressional initiative for SSA to reevaluate their position. In response, SSA commissioned the Institute of Medicine (IOM) to evaluate the science concerning the validation of psychological testing. The IOM concluded that validity assessment was necessary in psychological and neuropsychological examinations (IOM, 2015 ). Objective : The AACN sought to provide independent expert guidance and recommendations concerning the use of validity testing in disability determinations. Method : A panel of contributors to the science of validity testing and its application to the disability process was charged with describing why the disability process for SSA needs improvement, and indicating the necessity for validity testing in disability exams. Results : This work showed how the determination of malingering is a probability proposition, described how different types of validity tests are appropriate, provided evidence concerning non-credible findings in children and low-functioning individuals, and discussed the appropriate evaluation of pain disorders typically seen outside of mental consultations. Conclusions : A scientific plan for validity assessment that additionally protects test security is needed in disability determinations and in research on classification accuracy of disability decision.

     I notice that this is the "Official Position" of the American Academy of Clinical Neuropsychology but it makes reference to the National Academy of Neuropsychology. In addition there are the American Board of Professional Psychology which certifies neuropsychologists, the American Board of Clinical Neuropsychology, the International Neuropsychological Society and the Society for Clinical Neuropsychology. There aren't that many neuropsychologists in the U.S. There may not be 50 in my state, North Carolina. Why do neuropsychologists have so many professional organizations? What is the standing of the American Academy of Clinical Neuropsychology? I don't know. I can say that one of the eight co-authors of this "Official Position" derives at least part of his income from one of the tests that the authors of this report recommend. That's revealed at the end of the report itself. I can also say that widespread use of validity testing by Social Security would create a lot of business for psychologists. It doesn't prove that what they're saying is wrong but it is best to keep in mind that the financial interest of some psychologists is at stake here.
     You might expect me to oppose validity testing but I'm not sure what to think. If anything, I suspect it might help claimants. As a practical matter, at the initial and reconsideration levels of review of Social Security disability claims, Social Security is applying a near conclusive presumption that claimants alleging disability due to pain, intellectual disability or mental illness are malingering. Those claims aren't being approved at those levels except in the most extreme cases. It's not quite like that when these cases get before Administrative Law Judges but there's still a significant bias against claimants who have these problems. I suspect that many claimants who complain of pain, intellectual disability or mental illness would test out as "valid" on the tests being recommended and would be approved more quickly.
     I'm old enough to have been around when the grid regulations were introduced. There was great fear then that those regulations would result in fewer disability claims being approved. What actually happened was that more disability claims were approved.
     Should I worry about my clients being thrown into this briar patch?

Growing Opioid Issue

     From Health Day:

A growing number of Americans on work disability chronically use powerful prescription painkillers, according to a new study.

Researchers found that between 2007 and 2011, about 44 percent of people receiving Social Security Disability Insurance benefits were prescribed narcotic painkillers each year. And the percentage using the drugs long-term rose from 21 percent in 2007 to 23 percent in 2011. ...

The findings, reported in the September issue of the journal Medical Care, aren't surprising, [a researcher] noted. Nationwide, prescriptions for narcotic painkillers -- also known as opioids -- surged 300 percent after 1999, according to the U.S. Centers for Disease Control and Prevention (CDC). ...

"In the short term, people get some relief," said Dr. Eric Collins, physician-in-chief at Silver Hill Hospital in New Canaan, Conn., which specializes in psychiatric and addiction treatment.

"But there's no good evidence that long-term use is effective for non-cancer pain," Collins said. ...

The truth is, Meara said, treating chronic pain is difficult. Common problems such as low back pain have no one-size-fits-all therapy, but a number of non-drug options exist, such as exercise, over-the-counter pain medications, acupuncture and biofeedback.

     To be clear here, the dispute is over whether the expanded use of opioids that has been seen over the last 20 years or so is a problem or simply necessary treatment for chronic pain. No one is suggesting that those on Social Security disability benefits abuse opioids any more than any other group. A very significant percentage of those on Social Security disability benefits suffer from conditions which produce chronic, severe pain. It's a question of how you treat that pain.
     I've long noted that anyone experiencing severe pain regards their pain as an emergency which requires urgent treatment. However, when it's someone else's pain, especially if that person is a stranger, people regard pain as merely "subjective" and possibly feigned. If you want additional restrictions on prescriptions of opioids, remember that someday, perhaps soon, you may be in severe pain and desperate for relief.

You Ought To Read That Radical Disability Benefits Reform Act Of 1984

     In right wing explanations for the increase in the number of people drawing Social Security disability benefits you read again and again that the Disability Benefits Reform Act (DBRA) of 1984 is the problem. Supposedly, DBRA was a dramatic loosening of standards that allowed untold numbers of healthy people to get on benefits due to alleged musculoskeletal and mental disorders.

     The problem with this theory is that it's possible to actually read what DBRA says. But first, you might want to read then President Ronald Reagan's signing statement on DBRA. You won't find a single reference to musculoskeletal disorders or mental disorders. That's because DBRA primarily concerned the establishment of a medical improvement standard for termination of disability benefits. All Reagan said about the other provisions of DBRA was that "Several other changes are written into this new law that will clarify and expedite the administration of the disability program." Those tricky Democrats put one over on the Gipper.
     Here's the actual language from DBRA that might have some applicability to musculoskeletal disorders:

An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.

     If you haven't already fallen asleep from reading this language, you probably noticed that, again, the term "musculoskeletal" doesn't appear anywhere. Back pain doesn't come up either. You'll also notice that the language hardly looks like it would throw open the floodgates for the approval of any disability claim. If anything it looks a bit tough. To be complete, I'll note that DBRA also created a Commission to study the evaluation of pain but I'll save you the trouble of looking that one up. At considerable expense, the Commission produced a report that almost no one read, a report that had exactly zero effect upon policy or practice at Social Security.
     Here's the language from DBRA concerning mental illness:

The Secretary of Health and Human Services ... shall revise the criteria embodied under the category "Mental Disorders" in the "Listing of Impairments" ... The revised criteria and listings, alone and in combination with assessments of the residual functional capacity of the individuals involved, shall be designed to realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment.

     Why was DBRA ordering Social Security (which was then part of the Department of Health and Human Services) to write new mental impairment listings? Because of the decision in Mental Health Ass'n of Minnesota v. Schweiker, 554 F.Supp.157 (D. Minn. 1982), which was a searing indictment of Social Security's standards for assessing disability claims based upon mental illness. This lawsuit came about because of a revolt by some physicians involved in implementing those mental illness standards. I was around at that time. I can tell you that if an agency is capable of having remorse, Social Security had remorse after that lawsuit. Does ordering Social Security to rewrite its regulations so that they "realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment" sound like it would inject something radical into Social Security's evaluations of disability claims based upon mental illness? Please read the decision in Mental Health Ass'n of Minnesota before you advocate going back to the standards applied by Social Security in evaluating mental illness before DBRA. If you really want to go back to those days, I can tell you that the standard actually required for approval based upon mental illness was something like "requires long-term institutionalization."
    By the way, if you read a little further in DBRA you'll notice that it included a provision to make it easier for state vocational rehabilitation agencies to get rewards for their success in putting Social Security disability recipients back to work. Even back then the idea of reducing rehabilitation to lower the costs of the Social Security disability programs was being tried but even then that was hardly new. Notice that I said that DBRA was designed to make it easier to get these rewards. The rewards had been established much earlier. Efforts to get disability benefits recipients back to work go back about as far as Social Security disability itself. Of course, DBRA's changes did not lead to an improvement in the rehabilitation rate. None of these legislative efforts have worked nor will any future efforts along this line work. But I needn't bother saying this. Congress doesn't want to hear that the vast majority of Social Security disability recipients are just too sick to be helped by rehabilitation.