Social Security Newsletter

This Spring 2017 Social Security Newsletter is a publication of the Social Security Lawyers Section of the State Bar of Michigan. This Social Security Newsletter was written by one of Seward, Tally & Piggott, P.C.'s attorneys, Lewis Seward.

Significant Regulatory Changes for the 2016-2017 Year

Toward the end of 2016 there were a significant amount of revisions with new listings for Mental Impairments and Neurological, completely revised Treating Source Rule/Changes on Medical Equivalence and the elimination of term “Credibility” just to name a few.  Our Social Security Sections has a seminar on these changes on Friday, June 23 (see enclosed registration form.)  The following is a summary view of these changes.  SSA has all of these on their website including a preamble summary to changes in the Treating Source Rule specifically outlining what parts of the law have been revamped and what has been rescinded.  Even with all these changes, SSA just recently came out with corrections to those changes. 

Social Security Ruling 17-2P Regarding Medical Equivalence

The medical equivalence regulations have been changed effective March 27, 2017.  Social Security Ruling 17-2p clarifies who is responsible for deciding whether a claimant’s impairment medically equals a listing.  This new Ruling rescinds and replaces SSR 96-6p.  The Ruling provides that at the hearing level or Appeals Council level when the

Appeals Council issues its own decision, the adjudicator is the person responsible to making a finding of medical equivalence to a listing.  The Ruling requires the adjudicator to base his or her decision on a preponderance of the evidence standard.  In order to demonstrate the support for medically equaling a listing, the adjudicator must document one of the three requirements.

 1.      A prior administrative medical finding from a medical consultant or psychological consultant from the initial or reconsideration level supporting the medical equivalence finding, or

2.      Medical expert evidence, which may include testimony or written responses to Interrogatories, obtained at the hearing level supporting the medical equivalence finding, or

3.      A report from the Appeals Council’s medical staff supporting the medical equivalence. 

Treating Source Rule

The New rule basically puts the treating physician at par and equal footing with a non-examining program physician at DDS or a state agency medical consultant that the claimant is sent to.  This new Rule negates the advantage of the treating physician who is intimately involved in caring for their patient, ordering tests, changing medications and referring to specialists.  This New rule relegates the medical provider to the same status as a physician hired by Social Security either in a Consultative Examination or non-examining program physician at the DDS level.  The rule indicates that it is never appropriate under our rules to “credit-as-true” any medical opinion.  

The rule becomes effective for claims filed on or after March 27, 2017.  What this means is that any cases in the pipeline including those at the Appeals Council or in Federal Court are subject to the prior treating physician rules which are found under 20 CFR 404.1527(c)(2), and 416.927(c)(2).  The Social Security Rulings SSR 96-2p, SSR-96-5p, SSR 96-6p and SSR 06-03p all have been rescinded.  The last ruling under SSR 06-03p will be revised.  

The positive aspect of this new regulation is that physician’s assistants, advanced nurse practitioners including nurse practitioners, clinical nurse specialists, nurse anesthetist are now considered Acceptable Medical Sources on par with physicians 404.1502 and 416.902.  Social Security also kept the door open by indicating that SSA will consider and articulate our consideration of all medical opinions regardless of their acceptable medical status.  Therefore, the door is kept open to clinical social workers, physical therapists who now require a doctorate degree and other medical or psychological specialists not included on the acceptable medical “short list”.  

The focus with the new rule looks at the “persuasiveness of the medical source based on supportability and consistency.”  Those are the only factors that require articulation under the new rule.  The exception is when there are multiple opinions that are equally well-supported and consistent.  Adjudicators can look at additional factors such as their relationship with the claimant, extent of the treatment relationship specialization familiarity with the record and even understanding SSA policy.  

The bottom line is the new rules give the adjudicator either at the DDS level or the hearing level, more regulatory support to give minimal weight to a treating source opinion. The obvious reason for these changes are the significant uptick in Federal Court claims filed with the treating source as a principle issue.  Social Security painted itself in a corner with the Prior Rules as they were much more specific and those cases found their way into Federal Court which made SSA enforce their own rules.  Now SSA has rescinded the Social Security Rulings dealing with the treating source rule.  This gives the adjudicator the tools to subjectively discount the treating source’s opinion and provide little articulation explaining why minimal weight was given in the first place.  

Social Security’s explanation is that SSA revised how they consider medical opinions to reflect modern healthcare delivery such as nurse practitioners and physician’s assistants.  Secondly SSA acknowledges that the current policies that focus upon weight including the treating source rule have resulted in reviewing courts focusing more on whether we sufficiently articulated the weight we gave to opinions rather than on whether substantial evidence support Commissioner’s final decision.  Social Security explains they cannot force ALJ’s to articulate in their decision why minimal weight was given to a treating source opinion.  Therefore, SSA changed the rule completely to allow the ALJs more leeway in rejecting the treating source opinion.  

To SSA’s credit however the revised rules indicate that the adjudicator is required to articulate the consideration of medical opinions from all medical sources regardless of whether the medical sources and acceptable medical source or not.  It also requires that the adjudicator must discuss a factor of supportability and consistency indicating these are the most important factors rather than the six factors under 20 CFR 404.1527(c)(2).

As you know there is a large body of well-established case law on the treating source rule which gives more significance to a treating source than a one-time examining physician or even worse, a non-examining program DDS physician.  It will take several years for these post March 27, 2017 cases find their way into Federal Court. 

Additionally, SSA has also adversely impacted Veterans who filed Social Security Disability Claims.  Prior to this new rule, Social Security was required to discuss in the decision any decision made by another governmental agency about whether the veteran is disabled.  The new rule indicates that the adjudicator does not need to provide any analysis for the veteran found disabled in that claim. 

The new rules indicate that they will still consider all of the supporting evidence underlying the other governmental agencies decision received as evidence in a claim.  SSA indicated without mentioning the VA that decisions made by governmental agencies or non-governmental entities that an individual is disabled, blind or unemployable in any claim for disability for blindness under Titles II and XVI of the Act are inherently neither invaluable or persuasive to us.  However, we will continue to consider relevant evidence and other evidence that supports or underlies other governmental agencies or non-governmental agencies decisions that we received based on the applicable evidence categories.

 The same treating source rule that was in effect prior to cases filed before March 27, 2017 still require that the ALJ must provide good reasons for accepting or rejecting an opinion from a treating physician.  20 CFR 404,1527(c)(2), 416.927 (c)(2), SSR 96-2p, SSR 96-5p, SSR 96-6p, and SSR 06-03p. 

Changes in the Unsuccessful Work Attempt Rules

Unsuccessful work attempts have been changed as November 16, 2016.  The old rule evaluated unsuccessful work attempts that last between three and six months.  The new rules remove some of the requirements for evaluation of an unsuccessful work attempt that would last between three and six months.  The new rules also allow previously entitled beneficiaries to apply for an expedited reinstatement (to continue their benefits) in the same month they stopped working (performing substantial gainful activity).  The new rules will help the disabled who usually live from paycheck to paycheck. 

 The new rules are found under 81 Fed. Reg. 71367 (October 17, 2016) and become effective on November 16, 2016.  In an interesting note on cooperation with the disabled community, SSA noted in the Federal Register that comments from disability advocate organizations all support the proposed rule due to the positive impact on beneficiaries by removing additional documentation previously required and to help the disabled individual more quickly get into pay status. 

Using Genetic Testing to Evaluate Disability Claims

Social Security Ruling 16-4p provides guidance to adjudicators about how SSA considers medical evidence of genetic tests.  This Ruling acknowledges that genetic testing is a part of the objective medical evidence in some cases needed to establish existence of a medically determinable impairments.  Genetic testing is defined as “a type of medical test that identifies variations in genetic material [that] uses laboratory methods to detect genetic variations associated with a disease, condition or genetic disorder.”

SSA explains that Genetic testing is now relevant to the SSA evaluation process because scientific researchers are discovering an increasing number of associations between genetic variance and medical disorder.  The Ruling acknowledges that the proliferation of genetic tests are more widely available and therefore more common place in disability cases.  SSA also explains that it will not order Genetic testing in a consultative examination.  However, if genetic testing results are available in the claimant’s record they will be used and considered throughout the Sequential Evaluation Process. 

An Evaluation of Symptoms Rather than Credibility in Disability Claims

Effective March 20, 2016, SSA has eliminated using the term “credibility” in ALJ Decisions.  Under Social Security Disability SSR 16-3p too many claimants have associated the ALJ’s taking issue with the claimant’s credibility with accusing them of not being truthful.  In an attempt to be politically correct, SSA eliminated the term “credibility” because the subjective symptom evaluation that credibility involves is not a character examination.

The new Ruling clarifies SSA continued position that an individual’s allegations of symptoms alone are not enough to establish the existence of a physical or mental impairment or a disability.  This is probably one of the most common misconceptions of unrepresented claimants.

The new Ruling provides a two-step evaluation process:

1.      Determination of whether there is an underlying medically determinable impairment that can reasonably expected to produce the individual’s symptoms and

2.      Evaluation of the intensity and persistence of those symptoms as they impact on the ability to work as an adult or the ability to function as a child. 

The Ruling clarifies that SSA will not evaluate an individual’s symptoms without making every reasonable effort to obtain a complete medical history in order to base the medically determinable impairment solely on objective medical evidence.  SSA will consider the objective medical evidence in conjunction with the other evidence in the record such as statements from an individual, medical source statements, third parties or other treatment sources such as sheltered workshops or educational agencies.

The Ruling also reaffirms the long standing requirement that a claimant seeking benefits must attempt to obtain medical treatment for their condition or symptoms and follow their medical provider’s advice once treatment is prescribed.  In other words, if you have a mental impairment, you must seek treatment if you want SSA to pay you benefits.

Additionally contrary to most claimant’s belief, SSA has also reaffirmed its stance that conclusive statements such as “the patient is disabled and unable to work” are not sufficient in evaluating an individual symptoms. 

Revisions to Mental Impairments

The disability impairment listings for mental disorders has been revised effective January 17, 2017.  Some of the more notable changes are the “B” criteria which has changed.  The “B” criteria have four areas of mental functioning, i.e., (1) understanding, remembering or applying information; (2) interacting with others; (3) concentration, persistence or maintain pace; (4) adapt or manage oneself.

The “C” criteria which have also been added which was previously found only under depression bipolar but is now added to neurocognitive disorders and schizophrenia.

Additionally, the intellectual disorders under 12.05 have been significantly changed.  You still have to demonstrate that your client has had an intellectual disorder and adaptive functioning problems prior to age 22.  The intellectual disorder also requires the revised “B” criteria. 

In summary, all the mental impairments listings have been revised.  By adding additional criteria for each of the mental impairment disorders, the author believes these changes give more clarity to how a listing is met while eliminating some of the subjectivity in determining whether or not the listing is met.  The mental impairment listing have also added personality and impulse control disorders, neurodevelopment disorders, eating disorders, and trauma or stress related disorders all as new categories.  All of these new categories also have the revised “B” criteria.

There are also corresponding changes in the mental disorders for children which also added the new revised “B” criteria paralleling many of the adult listings.

Lastly Social Security has just revised the Psychiatric Review Technique Form, i.e., PRTF which is completed by the reviewing physician at DDS.  The form name is SSA-2506-BK.  The author recommends that any practitioner who is going to represent a client with the mental disorder should download this form.  It is a handy checklist that you can use to determine how close your client is to meeting or equaling this listing.  This could also be useful to a treating psychiatrist or psychologist.  However, it is 15-pages long and it would take a little explaining for a mental health provider to understand the mechanics of the form.

The listing also looks at whether a claimant needs psycho-social supports, structured setting and living arrangements including assistance from your family or others which may help the claimant reduce the demands made on them.  Social Security also notes that treatment that a claimant receives may reduce their symptoms and signs and possibly improve their functioning. As a result Social Security indicates they will consider the kind and extent of supports that a claimant receives the characteristics of any structured setting and the effects of any treatment. 

Social Security looks to claimants receiving extra help from family members, special education or vocational training programs, sheltered or supported work situations.  Also “24/7” wrap around mental health services or Assertive Community Treatment programs (ACT) which are present in most CMH community based programs in Michigan.  This program qualifies as psychosocial supports that must be taken into consideration when evaluating the severity of a mental impairment.  Assertive Community Treatment is a comprehensive team approach with a therapist, case manager, psychologist and usually a nurse who monitors the progress of the patient with a goal of preventing exacerbation of symptoms that may lead to inpatient crisis situations.

Before the SSA denies or terminates benefits in any case in which there is evidence of the existence of a mental impairment, it must make every reasonable effort to ensure that a psychologist, psychological consultant or psychiatrist completes the medical portion of the case review and any RFC assessment.  SSA must then determine if additional physicians. Psychiatrists or psychologists are needed to make any further evaluation. 20 CFR 404.1617, 416.1017.

New Neurological Impairment Listings

The impairment listings under the Neurological Disorders have been significantly changed.  New categories were added including vascular insult into the brain, benign brain tumors, spinal cord disorders, muscular dystrophy, peripheral neuropathy, neurodegenerative disc disorders and motor neuron disorders other than ALS

The New Epilepsy Criteria adds dyscognitive seizures which could be pseudo-seizures characterized by blank staring or repetitive simple actions like lip smacking.  The new epilepsy impairment listing also added two additional ways to be found disabled under the generalized tonic-chronic seizures or dyscognitive seizures by also requiring a “marked limitation” in one of five specific areas, i.e., (1) physical functioning; (2) understanding, remembering or applying information; (3) interacting with others; (4) concentrating, persisting or maintaining pace; and (5) adapting or managing oneself.

Additionally, the Multiple Sclerosis Listing made it more difficult to be found disabled with patients with this diagnosis.  The new listing requires an “extreme” limitation in the ability to stand up from a seated position, balance while standing or walking or using the upper extremities.  However, there is an alternate listing under MS which uses nearly the identical factors found in the seizure listing with the exception there must be a marked limitation in physical functioning plus a marked finding in the remaining four areas of understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing oneself. 

2017 Social Security Rates Posted for this Social Security Newsletter

The following based on the consumer price index using a .3% COLA are the 2017 rates:

HAVE QUESTIONS?  The dedicated lawyers at Seward, Tally & Piggott, P.C. in Bay City, Michigan are here to help!  Call today!  989-892-6551

We hope this Social Security Newsletter was informative and of value to you.  For more information about attorney Lewis Seward at Seward, Tally & Piggott, P.C., click here.

The preceding Social Security Newsletter is provided for informational purposes only. While every effort has been made to ensure accuracy, it cannot be relied upon as legal advise.  Applicability of the legal principles discussed in this Social Security Newsletter may differ substantially in individual situations.  Please consult with the attorneys at Seward, Tally & Piggott, P.C. for legal aid.

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