New Social Security Rules for Evaluating Medical Evidence in Disability Determinations: Part One

January 29, 2017

 

These were recently published in the Federal Register Vol. 82 No. 11/Wednesday January 18, 2017. I'm not going to address all the policy discussions, public comment and debate that went on around them. I am just going to try to boil down all the new and revised rules.  Not everything here is new. For ease of read and understanding though I'm summarizing all the sections in the CFR affected whether entire sections were replaced with new verbage or just parts of some sections were changed. I also played around with the order of some of the sections to group together what I thought were more like or connected issues.

 

Definitions (404.1502)

 

Acceptable Medical Sources

Physicians (MDs or DOs)

Psychologists

Optometrists 

Podiatrists 

Speech Language Pathologists 

Audiologists

Advanced Practice Registered Nurse

Physician Assistants

 

All have to meet certain license/certification requirements. In addition other types of Advanced Nurses with titles similar to Advanced Practice Registered Nurse would also meet the definition. All of these individuals must also be working within the scope of their title/license/specialty as related to the claimants case.

 

Note that a Psychologist can include someone who works at the private practice level or the school level. The individual working at the school level can even be someone who has some other license but is not a psychologist but who performs the same functions as a school psychologist dealing with intellectual disabilities, learning disabilities, and borderline intellectual functioning. 

 

What is a Laboratory Finding?

Some type of physical or mental phenomena that can be shown through the use of medically acceptable diagnostic techniques

 

What Are Examples of Medically Acceptable Diagnostic Techniques?

Blood Tests

Electrocardiograms 

Electroencephalograms

X-Rays

MRIs

CT/"Cat" Scans

Psychological Tests

 

What is a Medical Source?

A  state licensed healthcare worker working within the scope of their license Or

any Speech Language Pathologist or School Psychologist working within the scope permitted under state or federal law

 

What is a Non-Medical Source?

Everyone else including the individual applying for benefits, their family and friends, teachers, school counselors, daycare workers, social workers, therapists and nonprofit and government human services personnel

 

What is Objective Medical Evidence?

Laboratory Findings and Signs

 

What Are Signs?

These are physical or mental abnormalities that a healthcare worker can observe apart from the symptoms or statements given by the patient using medically acceptable clinical diagnostic techniques

 

What Are Symptoms?

Words used by the patient to describe their conditions

 

Decisions by Other Governmental Agencies and Nongovernmental Entities (404.1504) 

This addresses when individuals have been determined to be disabled by any number of different, usually government, agencies, such as the Veterans Administration or State Workers Compensation. These entities have very different rules, definitions and laws that they follow compared to Social Security in determining who is disabled. No weight is given to these decisions. 

 

However, Social Security will consider all the underlying evidence behind these other agency decisions and apply them to the case at hand under the Social Security laws, rules, and definitions. Social Security will not provided any analysis in in their written determinations  or decisions about how they did or did not view the decisions of any of these other entities.

 

Categories of Evidence (404.1513)

 

What Are the Five Categories of Evidence?

Objective Medical Evidence

Medical Opinion

Other Medical Evidence

Evidence from NonMedical Sources

Prior Administrative Medical Findings

 

What is Objective Medical Evidence

Laboratory findings and signs 

 

What is a Medical Opinion?

A statement from a Medical Source that states (1) what you can still do despite your impairments (2) you ability to perform various physical work activities (3) your ability to perform various mental activities (4) Your ability to utilize fully all your five senses when performing work activities and (4) your ability to adapt to various work environmental conditions

 

What Are Examples of Physical Work Activities?

Sitting

Standing

Walking

Lifting

Carrying

Pushing

Pulling

Manipulative and Postural Functions such as

Reaching

Handling

Stooping

Crouching

 

What are Examples of Mental Work Activities?

Understanding

Remembering

Maintaining Concentration, Persistence or Pace

Carrying Out Instructions

Responding Appropriately to Supervision, Co-Workers, or Work Pressures in a Work Setting

 

Whar are the Five Senses? (just a reminder)

See Hear Taste Smell Touch

 

What Are Examples of Environmental Conditions

extreme temperatures, fumes

 

What Is Other Medical Evidence?

Anything that is not an Objective Medical or Medical Opinion

such as

Judgments about the NAture and Severity of a COnditions

Medical History

Clinical Fnding

Diagnosises

Prescrived Treatment with Response 

Prognosis

 

What is NonMedical Evidence?

Everything Else except . . . . 

 

What is a Prior Administrative Medical Finding?

A finding by a medical or psychological consultant issued by the State Level Agency making the initial disability determination

 

What Can Findings Include?

the existence and severity of impairments

the existence and severity of symptoms

statements of whereher impairments meet or equal a medical listing

the residual functional capacity

whether impairment meets the durational requirements

hoe failure to follow treatment affects a claim

how drug or alcohol use affects claims

 

How Judges Review Evidence from State Agency Medical and Psychological Consultants

404.1513(b)(1)(2) 

They are not required to adopt any prior administrative findings

but "State Agency Medical/Psych Consultatnts are highly qualfied and experts in SS Disability Evaluation"

Can Ask for medical advice from expert medical sources

Must evaluate using all the other rules in this section

 

How Is Evidence Considered by the ALJs? 404.1520b

Is the Evidence Complete?

Is the Evidence Sufficient or Insufficient?

Is the Evidence Consistent?

 

What Does Insufficient Mean? 

The Evidence does not contain all the information needed to make a determination

 

What Does Inconsistent Mean?

It conflicts with other evidence, has an internal conflict, is ambiguous or does not seem to be based on medically acceptable clinical or laboratory diagnostics techniques.

 

What Might the ALJ Do If the Evidence Is Inconsistent or Insufficient?  

Contact Medical Sources

Request Additional Excisting Evidence

Ask the Claimant to Undergo a CE at SSA's expense

Ask Others for more information

 

What if the Inconcsistencies or Insufficeicies Still Cannot Be Resolved?

A determination will be made with the information available

 

What is Evidence that is Inherently Neither Valuable Nor Persuassive?

Decisions by Other Government Agencies

State Agency Disability Examiner Findings

Statements on Issues Reserved to the Commissioner

 

How Are Medical Opinions and Findings by Prior Administrative Medical Sources and Other Medical Sources Treated? Controlling Weight? Deference?

Neither Receives any Automatic Deference

Neither is given any specific evidentiary weight

Neither will automatically be given ny controlling weight

 

What are the most Important Factors Considered in Evaluating the Persuasiveness of Medical Opinions and PAMs?

Supportability

Consistency

 

How Do ALJs Consider Medical Opinions and Findings? ("Battles of the Doctors" "Battle of the Paper.") 

When a single MO or PAM has multiple opinions and/or findings, a single analysis will be conducted for the entire source or PAM not for every individual finding and opinion

Again Supportability and Consistency are the most important factors in determining how persuasive each is 

Equally Persuasive MOs or PAMs on the same issue (e.g. both are equally well supported and consistent with the record) - but not exactly the same - ALJ will articulate which they feel is more persuasive based on several factors

 

What Are Those Factors?

(1) Supportability

(2) Consistency

(3) Relatinship with the CLaimant

(4) Length of the Treatment Relationship

(5) Frequency of Eaminations

Purpose of the Treatment

(6) Extent of the Treatment Relationship

(7) Examining Relationship

(8) Specailization

(9) Other Factors

 

Does the ALJ Need to Articulate these Factors Applied to Nonmedical Sources?

No

 

Establishing that You Have a Medically Determinable (Physical or Mental) Impairment (404.1521)

 

What is a Medically Determinable Impairment?

An anatomical, physical, or mental abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques  that significantly limits  your physical or mental ability to do basic work activities. This must be shown by objective medical evidence by an acceptable medical source. This cannot be proven through symptoms, a diagnosis, or medical opinion.

 

What are Basic Work Activities?

The abilities and aptitudes necessary to do most jobs

 

Examples of Basic Work Activities

Physical Fucntin ssuch as walking standing lifting pushing pulling reaching carrying or handling

Capacities ofrSeeing, Hearing, Speaking

Undesrstaning, Carrying Out, and Remembering Simple sInstructions

Use of Judgment

Responding Appropriately to Supervision, Coworkers and usual work situations

Dealing with changes in a routine work setting 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Responsibility for Gathering Evidnece for Any Case 404.1512

 

 

 

 

 

 

 

 

 

 

 

 

Initial Determinations and the Mentally Ill

 

Each States's Bureau of Disability Determination Services must make every reasonable effort to have a Psychiatrist or Psychologist conduct a medical case review and residual functional capacity assessment if the Claimant if it appears they may have a mental impairment

 

Attorney Advisers Making Judicial Decisions

 

 

 

Definition of Who is An Acceptable Medical Source (AMS) 

 

 

 

 

 

Definition of Laboratory Findings

 

 

 

Definition of Medical Source

 

 

 

Definition of Nonmedical Source

 

 

Objective Medical Evidence

 

 

 

Signs 

 

 

 

Symptoms

 

 

Decisions by Other Government Agencies and Nongovernmental Entities

 

 

 

 

Responsibility for Evidence

 

 

 

Categories of Evidence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Damian Leone Esquire
Scranton Wilkes-Barre Northeastern Pennsylvania
Social Security Disability Attorney

(570) 677-3914

dleone@nepasocialsecurity.com