Commentary on the newly proposed revisions to the Social Security regulations

On Behalf of | Sep 15, 2016 | Firm News

The government has proposed drastic changes to the Social Security law which would have a devastating effect on Social Security claimants.  The proposed regulations and explanatory documents can be found here:

The rule is presented to look benign enough and even beneficial.  The rule is proposed as elevating non-doctor medical sources, such as social workers, nurse practitioners, and physician assistants, to the same stature in the regulations that is afforded to physicians.  But this is subterfuge.  The wording of the proposed regulation does not elevate anyone, but instead simply drags the opinions of all medical sources, doctor and non-doctor alike, down to the level of worthlessness.

The key change proposed is to eliminate what the rule drafters refer to as the “controlling weight rule.”  Attorneys and other claimant’s representatives commonly refer to this as the “Treating Physician Rule.”  Codified at 20 CFR § 404.1527 and 416.927, the rule essentially directs that the opinion of a treating physician, if well-supported by objective medical evidence and not contradicted by another treating source, is entitled to “controlling weight” and can essentially dictate the Decision in the claim.  In short, if a treating physician says that your condition imposes limitations which satisfy the criteria of disability, then the government has to adopt those findings and will find you disabled.  This proposed rule change will take away that power from not only doctors but also from all other medical care providers.

The proposed rule eliminates the phrase “controlling weight” altogether.  The revised proposed statute is produced at pages 115 through 119 of the document.  It seems a little sneaky, to me, that they would bury the substance of the change so deep into the document.  But there it is.  I’ve reproduced it in full here:

§ 404 Evaluating opinion evidence.

This section applies to claims filed (see §404.614) before [EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE DATE OF FINAL RULE], the rules in §404.1520c apply.

(a) Definitions—(1) Medical opinions. Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.

(2) Treating source. Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.

(b) How we consider medical opinions. In determining whether you are disabled, we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive. See §404.1520b.

(c) How we weigh medical opinions. Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source’s opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source’s opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (ii) of this section, as well as the factors in paragraphs (c)(3) through (6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s opinion.

(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source’s opinion more weight than we would give it if it were from a nontreating source.

(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source’s medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source’s opinion more weight than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources.

(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.

(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.

(d) Medical source opinions on issues reserved to the Commissioner. Opinions on some issues, such as the examples that follow, are not medical opinions, as described in paragraph (a)(2) of this section, but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.

(1) Opinions that you are disabled. We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source’s statement that you are disabled. A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.

(2) Other opinions on issues reserved to the Commissioner. We use medical sources, including your treating source, to provide evidence, including opinions, on the nature and severity of your impairment(s). Although we consider opinions from medical sources on issues such as whether your impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart, your residual functional capacity (see §§404.1545 and 404.1546), or the application of vocational factors, the final responsibility for deciding these issues is reserved to the Commissioner.

(3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section.

(e) Evidence from our Federal or State agency medical or psychological consultants. The rules in §404.1513a apply except that when an administrative law judge gives controlling weight to a treating source’s medical opinion, the administrative law judge is not required to explain in the decision the weight he or she gave to the prior administrative medical findings in the claim.

Indeed that may look a little confusing and contains a lot of what seems like legalese.  The important part is the complete deletion of the phrase “controlling weight.”  The effect that this will have is to give Administrative Law Judges (ALJs) greater discretion in how to assess and flat out disregard the opinions of your treating providers – whether they be MDs, PhDs, DOs, LCSWs, APRNs, DCs, DPTs, or any other acronym.  All, alike, are disposable under the proposed rule.

Let’s step beyond the plain-text for a moment to its surroundings.  As supporting documents, the government has posted two reports which both exhibit bias in a specifically anti-claimant direction: a report entitled “Assessing the Efficacy of the Treating Physician Rule,” which focuses on the thesis that the Rule makes it too easy for ALJs to grant benefits and too hard for them to deny them, and a “Petition for Rulemaking” by a law professor who argues, at length, that the program should be revised so as to deny more claimants.

So it’s crystal clear that the animus here is to deny more claimants, not to allow anyone’s relevant opinion to be heard.  This won’t make it easier for social workers to get their clients the help they need.  All it will do is make it easier for judges to deny claims, no matter how unanimously they are supported by treating care providers.

It is critical that advocates for the disabled comment on the proposed rule and make our voices heard.  But that is not enough.  Comments can, as is proposed for medical opinions, be completely ignored.  So instead, we must reach above the heads of the proponents of this harmful change.  Contact your Congressperson, regardless of their party, and tell them that you don’t want access to Social Security benefits to be chipped away.  Please share a comment on the proposed rule directly as well, but I fear that our voices simply won’t be heeded or even heard – and well-meaning treatment providers, such as the social workers who so far constitute the majority of the commenters, will drown us out without understanding the harm the new rule will do to their patients.