Articles Posted in Developments in the Law Affecting the Social Security Program

We are many times called by individuals who have been denied their Social Security disability claim (whether it be on their initial claim, reconsideration or at hearing) despite what they inform us is their doctor’s supportive letter.   It is not uncommon to see a disability claimant simply asking their doctor for a letter describing their disability, or a note that says they remain unable to work, and then they are surprised to find that they have been denied nonetheless.

The Social Security Regulations spell out a 5 step evaluation process that is rather complex, and in order to obtain useful information from a medical provider, it’s important to know what needs to be proven in order to qualify for benefits.  First and foremost, one needs to prove that they are suffering from a medically determinable severe impairment in accordance with Step 2 of the sequential evaluation process.  If one has not established through objective medical examination and/or testing that a medically diagnosed condition exists, any opinions from one’s treating doctors that one may be somehow limited in their ability to work cannot even be considered.

Once a medically determinable impairment has been established, it’s important to understand that the Social Security Administration (SSA) has a set of regulations that governs what evidence can be considered (and in what way).   For Social Security disability claims that have been filed on or after March 27, 2017, the Social Security rules have been amended so as to make clear the Agency’s position that no source opinion (whether it is from one’s own medical doctor or from a consultative examiner SSA sends one to, is automatically entitled to a greater weight of consideration).  For claims that have been filed prior to March 27, 2017, a treating source’s opinion is entitled to great weight and deference if in fact it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques” and it is not inconsistent with substantial evidence in the record.  Continue reading

When proceeding with a Social Security disability claim or appeal, one of the most important considerations moving forward is whether your treating physician understands the seriousness of your medical conditions and the extent to which your problems are impacting your ability to function (both in and out of the home).  Ultimately, it’s important that your treatment providers are willing and able to express in a meaningful manner to the Social Security Administration (SSA) he nature and severity of your medical conditions and the extent to which you would be impacted in terms of your ability to function in a work site.

As part of the five (5) step sequential evaluation process, it is first necessary to establish that one is suffering from a medically determinable to severe impairment before SSA will next determine what symptoms could reasonably be expected to follow from such medically determinable impairments.  At that point, the Social Security regulations   require that the agency determine the persistence and severity of one’s symptoms and the manner in which it impacts one’s ability to function in a work setting.  This requires a determination of one’s Residual Functional Capacity, which is defined by the regulations as the most one can do despite their physical and mental limitations.

The Social Security regulations, for claims filed prior to March 27, 2017, provided that treating source opinions (which would include the opinions of one’s medical doctors) would carry controlling weight assuming that the  opinions were supported by the  not inconsistent with the treatment records of the provider.  Amendments made to the Social Security regulations  provide that for those claims filed on or after March 27, 2017, controlling weight will not be provided to the opinions of a treating source (such as one’s primary care physician, psychiatrist or surgeon).  Rather, their opinions will be evaluated along side those of non-treating sources using the same set of factors that have now been outlines at 20 C.F.R. 1520(c).  Medical sources have now been expanded to include that of licensed physician assistants, with respect evaluation of impairments that fall into their licensed scope of practice and for licensed advanced practice nurses, and yet the opinions of your own providers may no longer be presumed to carry more weight than one of Social Security’s providers that may be asked to see you.  Continue reading

As we were discussing during our last blog post, Maine, Massachusetts and New Hampshire Social Security disability applicants are facing new evidence rules beginning March 27, 2017 that will  effect the manner by which the Social Security Administration reviews medical opinions from one’s medical treatment providers.    In addition, it is important that disabled Veterans who have been found disabled by the Veteran’s Administration and who may be considering applying for Social Security disability benefits, will likewise see a change in these rules that will adversely impact their Social Security disability application.

For many years, the Social Security regulations provided that acceptable medical sources (which were determined to be the only providers sufficiently skilled and educated enough to establish one’s medical impairments) were limited to the following medical providers: licensed physicians (medical or osteopathic doctors), licensed or certified psychologists (including school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only), licensed optometrists, licensed podiatrists and qualified speech pathologists.   The revised regulations, which will apply to claims filed on March 27, 2017, reflects the understanding that the medical provider landscape has changed dramatically over the course of the last few decades as a result of the managed care rules set forth by one’s insurance.

It has become more difficult over the years to see an actual doctor, and medical care is many times left to nurses or physician’s assistants: we see  this especially in the more rural areas of Maine, Massachusetts and New Hampshire, where finding a doctor that will see you is almost impossible unless you require urgent medical care.   This new reality in medical delivery, while somewhat acknowledged by the newly promulgated regulations, does not receive its full due and will leave many patients/claimants wondering why their medical provider is deemed capable enough of treating their condition but incapable of expressing an opinion that will carry much weight with the Social Security Administration.

Whether you’re a Social Security disability applicant in Maine, Massachusetts or New Hampshire, you will soon face new rules that govern the way in which your disability claim will be evaluated.  While some of the rules will be helpful, there are some changes that may prove to be quite harmful to those who initiate a claim on or after March 27, 2017.  We’ll attempt to provide you an overview of the new rules to you understand how these new rules may impact your particular case.

The Social Security rules and regulations have since 1991 reflected an understanding that the opinions of one’s treating physician will generally be provided what is deemed to be “controlling weight” assuming the opinion “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.”  20 C.F.R. §404.1527.   Newly promulgated Social Security regulation 20 C.F.R. § 404.1520c specifically puts an end to the preference that has been given to treating source opinions, and will potentially create new concerns for Social Security lawyers such as ourselves practicing throughout ME, MA and NH.  Instead, the new regulations make clear that a treating source may not be given more weight than the opinions of let’s say a consultative examiner who treats the claimant only on 1 occasion, or for that matter, the opinions of a medical consultant who has never examined you before (and is simply reviewing the written record).

The Social Security Administration (SSA) will now determine how persuasive  a medical opinion is by utilizing as the most important factors for consideration: 1) how “supportable” the opinion is and 2)  how “consistent” it is with other evidence in the record.  While these are deemed to be the most significant factors for consideration, another factors for consideration is noted to be the 3) the relationship with the claimant, which includes within this factor for consideration, the following additional considerations: the length of the treatment relationship, the frequency of the examinations, the purpose of the treatment relationship, the extent of the treatment relationship (which would include the nature and extent of the examinations and testing that has been undertaken by the treatment provider) and the examining relationship (with the additional commentary that “a medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.”  A 4th consideration is whether the medical opinion is from a provider who is in fact a specialist.

With the coming of 2017, and what we hope will be a Happy New Year to all, come changes to both those who are receiving Social Security disability (SSDI) and/or Supplemental Security Income (SSI) benefits and those who plan on applying for such benefits this year.  Whether you reside in Maine, Massachusetts or New Hampshire, as this is a federal program, the changes I am outlining below will apply to each of you.

First and foremost is a change to one’s benefit rate given the increase in the Consumer Price Index (CPI-W) from the third quarter of 2014 through the third quarter of 2016.  Based on these figures, an Cost of Living Adjustment (COLA) in the amount of .3 will be applied to your benefit check in 2017.   Thus, if you were receiving $1000.00 per month previously in SSDI benefits, you should see an increase in your monthly check to $1003.00.  Likewise, the Federal standard payment for SSI recipients has been increased from $733.00 per month for individuals to $735.00.   A corresponding increase has been made for the SSI limit for couples (to $1103.00).    The resource limitations for 2017 for SSI entitlement has remained the same for 2017: the resource (asset) limitation has remained the same for 2017 as it was in 2016: $2000.00 for individuals and $3000.00 for couples.

For those who are attempting to determine whether you remain disabled from performing gainful wages, it is important to note that the standard for substantial gainful activity (SGA) has been raised from $1130.00 per month to $1170.00 per month (while the standard for those who are applying based on blindness, the monthly amount has been increased from $1820.00 per month to $1950.00 per month).  Thus, if applying for Social Security disability or SSI benefits, the Social Security Administration (SSA) will be looking to see if you remain capable of earning simply $1170.00 per month on a regular and continuing basis.    It is important to remember, as we’ve discussed previously, SSA will not be looking to see necessarily whether you are actually undertaking SGA level earnings, but whether you remain capable of performing such work on a regular and continuing basis.  Assuming one is making SGA level earnings at the time of their application, however, this would be a basis for a denial of one’s claim at step 1 of the sequential evaluation process.

In part I of our blog on Interstitial Cystitis (IC) we discussed the manner by which the Social Security Administration (SSA) will undergo a determination as to whether one is experiencing what is deemed to be a “medically determinable impairment” (or “MDI”) of IC.  In part II of this series, we will address how SSA reviews whether an MDI of IC, once determined to be severe, will qualify one for Social Security disability benefits under SSA’s sequential evaluation process.   Continue reading

The National Organization of Social Security Claimants’ Representatives is an organization whose membership is comprised of both attorneys and non-attorneys who focus their practice on the representation of the long term disabled in Social Security disability claims and appeals.  Two times a year, this organization sponsors a 3 day conference where various presenters come and speak to members about various issues that arise in the representation of such cases, including what is happening with both the Social Security Administration with respect to its manner of handling as an agency the administration and adjudication of such claims.  These programs include  (both vocational and medical, including doctors) who are involved in the adjudication of such claims.   Continue reading

By Benjamin Rasmussen [free license (http://www.freeimages.com/license)], via freeimages.comWhen filing a claim for benefits from the Social Security Disability Insurance (SSDI) program, a claimant has a duty to provide honest and accurate information to the Social Security Administration (SSA). An attorney representing an SSDI claimant has a duty to provide diligent and competent professional services in accordance with the rules of the state in which they are practicing law. SSA regulations also place duties on the attorney to deal openly with the SSA, to promptly respond to requests for information, and to generally comply with the agency’s rules.

A new regulation, which took effect in April 2015, changes the duties placed on both SSDI claimants and their legal representatives, essentially requiring claimants to provide all evidence related to their claim, regardless of whether it supports or detracts from the claim. It also modifies the duties of a claimant’s legal representative to reflect these new duties.

New Evidence Requirements

The new rule modifies numerous SSA regulations, but one of its most important changes is to the regulation regarding evidentiary requirements in SSDI claims, found in Title 20 of the Code of Federal Regulations, Section 404.1512.

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By Julia Freeman-Woolpert [free license (http://www.freeimages.com/license)], via freeimages.comAs an agency of the federal government, the Social Security Administration (SSA) has the authority to determine which illnesses and injuries qualify for coverage under the Social Security Disability Insurance (SSDI) program. It maintains a list of impairments, known as the “Blue Book,” which examiners use to determine if an applicant meets the SSA’s definition of “disabled.” The Blue Book offers an important guide to SSA examiners’ methods for evaluating SSDI claims and making decisions.

The Blue Book

Officially titled Disability Evaluation Under Social Security, the Blue Book is the product of administrative rulemaking by the SSA. The complete list is codified in Title 20 of the Code of Federal Regulations, as Appendix 1 to Subpart P of Part 404 of the SSA’s regulations. It is also published in book form and on the SSA’s website.

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By Bjoertvedt (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0) or GFDL (https://www.gnu.org/copyleft/fdl.html)], via Wikimedia CommonsThe Social Security Administration (SSA), through the U.S. Department of the Treasury, maintains multiple accounts for funds held in trust to pay benefits under various programs. Benefits payable through the Social Security Disability Insurance (SSDI) program are held in the SSDI Trust Fund. This account is running out of money, and it is expected to be depleted by the end of 2016. At that point, the SSA would have no choice but to make substantial cuts in SSDI benefit payments.

People have been calling on Congress to address this problem for years, but it seems as though Congressional leaders are only just beginning to recognize the need for action. What they have done so far does not seem to be enough, and what they should do instead is a matter of much dispute.

What Is the SSDI Trust Fund?

The SSDI Trust Fund is an account in the U.S. Treasury that receives funds from payroll taxes withheld from employee paychecks and paid by employers under statutes like the Federal Insurance Contributions Act (better known as FICA). The SSA has automatic spending authority, without needing periodic Congressional approval, to disburse SSDI benefits from this account.

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