New Social Security Rules for Evaluating Medical Evidence in Disability Determinations: Part One
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.
Acceptable Medical Sources
Physicians (MDs or DOs)
Speech Language Pathologists
Advanced Practice Registered Nurse
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?
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
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?
Manipulative and Postural Functions such as
What are Examples of Mental Work Activities?
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
Judgments about the NAture and Severity of a COnditions
Prescrived Treatment with Response
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
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?
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?
(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
(9) Other Factors
Does the ALJ Need to Articulate these Factors Applied to Nonmedical Sources?
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
Decisions by Other Government Agencies and Nongovernmental Entities
Responsibility for Evidence
Categories of Evidence