September 2017

 

Social Security Disability Newsletter

 


New Guidelines:
Docs Don’t Rule Anymore

Consistency vs. Credibility – Honesty isn’t necessarily the key

 

Social Security’s recent administrative rules changes impact on the preparation and presentation of Social Security Disability claims, and will likely increase the percentage of applications denied.

Treating Physician Rule abolished:

Historically Social Security Administrative Law Judges have followed the “Treating Physician Rule” which had been codified in Social Security’s Regulations and reinforced in many federal court decisions. This provided that greater weight was to be given to the well-reasoned and supported
opinion of treating medical specialists who had examined and treated patients over a period of time. It made sense.

Many federal court decisions required Social Security Judges to address treating physician reports
that were not consistent with the Judge’s decision. The ALJs were forced to explain why they chose not to give greater weight to the treating physician who had knowledge of the patient’s symptoms and limitations.

This was changed with applications filed after March 2017. Now SSA will not be giving any specific evidentiary weight to any medical opinion. Instead, the “persuasiveness” of the opinion will be considered. “Supportability and consistency.” According to SSA’s POMS manual, “Supportability” means the extent to which an opinion is supported by objective medical evidence and the explanations provided by the medical source. “Consistency” means the extent to which the opinion is consistent with other medical and non-medical sources, including internal conflicts in a treating source’s medical records.

The weight to be given an opinion should also consider the source’s treating relationship with a Claimant, specialization and “other factors” including familiarity with the Social Security polices and requirements.

This new standard will allow SSA’s Judges to give greater weight to one-time examinations from it consultative physicians, as well as the non-treating, non-examining reports from its internal medical staff who have great familiarity with the agency’s policies and requirements.

Consistency v. Credibility:

In a recent Ruling Social Security changed the focus of Judges when determining how significantly a
Claimant’s symptoms of pain, fatigue, dizziness, etc. impact the ability to work. The focus is no longer on the credibility or truthfulness of the claimant. Decision makers will not “assess an individual’s overall character or truthfulness...” SSR 16-03.

Now the focus is on the consistency of a Claimant’s descriptions throughout the course of treatment and adjudication. Therefore, if a Claimant describes severe limiting pain to the orthopedic or pain specialist, but in a Daily Activities Questionnaire mentions walking the dog or cleaning the house or caring for an elderly parent that Claimant may not be “consistent.” SSA will consider whether a Claimant is treating, how frequently, with whom, with what medications and with how much compliance when determining the severity of symptoms. The Ruling does acknowledge that symptoms do wax and wane so not every statement needs to be identical.

The goal of making the decision “evidence based” may be desirable, but this analysis gives more leeway for decision-makers to find relatively minor inconsistencies to justify denying an honest and credible claimant.

 

 

 

 


TBI

Careful representation by an experienced advocate helps Claimants cope with these new Rulings. As always our law firm is ready to assist your clients, patients, family and friends with Social Securityissues. We can also provide training to professional staff on avoiding inconsistences and providing more well-reasoned opinions to help your clients.


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