Articulating a New Standard for Treating Source Evidence. Kate Callery, Esq. Louise Tarantino, Esq.

Transcription

1 A Articulating a New Standard for Treating Source Evidence Kate Callery, Esq. Louise Tarantino, Esq.

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3 Articulating a New Standard for Treating Source Evidence Section A Articulating a New Standard for Treating Source Evidence Kate Callery, Esq. Louise Tarantino, Esq. 3

4 Section A National Social Security Disability Law Conference ARTICULATING A NEW STANDARD FOR TREATING SOURCE EVIDENCE NOSSCR DISABILITY LAW CONFERENCE Phoenix, AZ September 13-16, 2017 Presenters LOUISE M. TARANTINO Empire JusNce Center, Albany, NY KATE CALLERY Empire JusNce Center, Rochester, NY 2 SSA's "Revisions" to TreaNng Source Rules Revisions to Rules Regarding EvaluaNon of Medical Evidence Proposed regulanons published Sept. 9, 2016 Final regulanons published Jan. 18, 2017 at 82 Fed. Reg h^ps:// FR /html/ htm 3 4

5 Articulating a New Standard for Treating Source Evidence Section A JusNficaNon? Changing nature of the primary healthcare system Per SSA, changes in how people receive care have undermined the presumpnon that treanng physicians have the longitudinal knowledge and unique perspecnve that objecnve medical evidence alone cannot provide. 82 Fed. Reg ACUS Report In formulanng new regulanons for evaluanng medical evidence, SSA relied heavily on 2013 findings of the AdministraNve Conference of the United States (ACUS) h^ps:// 5 Which Rules Were Revised? 20 C.F.R & C.F.R & C.F.R & C.F.R & And more 6 5

6 Section A National Social Security Disability Law Conference EffecNve Date Revisions will apply to new applicanons filed on or aner 3/27/2017 AdministraNve claims pending before the effecnve date will be adjudicated under the current rules Federal Court will review using rules in effect at Nme decision was issued 7 SSRs Rescinded SSRs 96-2p, 96-5p, and 06-03p Rescissions effecnve for claims filed on or aner 3/27/ Fed. Reg See discussions infra 8 Current Ruled Revised Current rules revised for claims pending prior to 3/27/17! See new current 20 C.F.R (f) & (f) Incorporate provisions of rescinded SSR 06-3p for consideranon of evidence from non-acceptable medical sources and non-medical sources 82 Fed. Reg. 5844,

7 Articulating a New Standard for Treating Source Evidence Section A Overview of Revisions Nurse pracnnoners and physician assistants added to list of acceptable medical sources (AMSs) Primacy of treanng source opinions eliminated Weighing of opinion evidence replaced by consideranon of persuasiveness 10 AMSs & MDIs Only objecnve evidence from an AMS can be used to establish a medically determinable impairment (MDI) 20 C.F.R & List of AMSs expanded 20 C.F.R & ObjecNve Medical Evidence Changed from signs and laboratory findings to signs, laboratory findings, or both 20 C.F.R & C.F.R (a)(1) & (a)(1) ObjecNve evidence is one of several categories of evidence 20 C.F.R &

8 Section A National Social Security Disability Law Conference MDIs Compare 20 C.F.R & MDIs must be shown by medically acceptable clinical and laboratory diagnosnc techniques Cannot be established by symptoms, diagnosis, or medical opinion 13 MDIs SSA has clarified that a diagnosis is not always reliable somenmes medical sources diagnose individuals without using objecnve medical evidence See 81 Fed. Reg Preamble to 9/16 proposed regulanons 14 "Other Medical Evidence" Diagnoses, judgments about severity, medical history, clinical findings, prognoses, treatments and response are considered other medical evidence 20 C.F.R (a)(3) & (a)(3) 15 8

9 Articulating a New Standard for Treating Source Evidence Section A New AMSs Licensed Advanced PracNce Registered Nurses Physician Assistants Audiologists Emphasis on within licensed scope of pracnce 20 C.F.R (6)(7)&(8); (6)(7)&(8) But considered AMSs only for claims filed on or aner 3/27/17 16 Non-AMSs Licensed Clinical Social Workers NOT added But LSCWs will be considered medical sources 82 Fed. Reg Opinions of all medical sources will be considered, including non-amss 20 C.F.R c & c 17 Medical Sources 20 C.F.R & Licensed health care worker Speech-language pathologist School psychologist Working within scope of pracnce All references to treanng source eliminated 18 9

10 Section A National Social Security Disability Law Conference Medical Source Opinions Adjudicators will be required to consider the persuasiveness of all medical source opinions 20 C.F.R c & c BUT although opinions as to funcnonal limitanons will be considered, they will not be accorded any extra weight See infra 19 ConsideraNon of Medical Opinions SSA will no longer weigh opinions, including medical source opinions A^empt to avoid confusion of the variety of terms currently used, such as significant, great, li^le, more, etc. Adjudicators will instead consider and arnculate the persuasiveness of opinions 81 Fed. Reg ConsideraNon of Medical Opinions Rules at 20 C.F.R & replaced for claims filed aner 3/27/17 by 20 C.F.R c & c Applicable to: Any medical opinions, including from claimant s medical sources Prior administranve medical findings 21 10

11 Articulating a New Standard for Treating Source Evidence Section A What are Prior Administrative Medical Findings? Prior findings by SSA s medical and psychological consultants (MCs & PCs) As to, e.g., existence or severity of impairment or symptoms, whether impairment meets durational requirement or equals/meets listing, RFC, failure to follow treatment, or DAA 20 C.F.R (a)(5) & (a)(5) Limited to findings in current claims 22 Controlling Weight Eliminated No medical opinions or prior administrative findings will be deferred to or given any specific evidentiary weight, including controlling weight Adjudicators will articulate the persuasiveness of opinions or prior findings 20 C.F.R c(a)&(b) & c(a)&(b) 23 Factors for considering persuasiveness Supportability Consistency Relationship with the claimant Combines current examining and treatment factors Specialization Other factors 24 11

12 Section A National Social Security Disability Law Conference Persuasiveness Factors listed in order of importance But supportability and consistency are most important 20 C.F.R c(b)(2) & (b)(2) All except relanonship factor specifically refer to each factor as potennally more persuasive 25 Consistency? SSA acknowledges determining consistency may be challenging in certain claims Per SSA, consistency as used in the new rules is the same as the plain language and common defininon 82 Fed. Reg Consistency? [I]ncludes consideranon of factors such as whether the evidence conflicts with other evidence from other medical sources and whether it contains an internal conflict with evidence from the same medical source 82 Fed. Reg

13 Articulating a New Standard for Treating Source Evidence Section A Consistency? Symptom severity may fluctuate 82 Fed. Reg [E]vidence from a medical source that has a longstanding relanonship with a claimant may contain some inconsistencies over Nme due to fluctuanons in the severity of an individual's impairments 82 Fed. Reg RelaNonship Factor 20 CFR c(c)(3) & c(c)(3) Length of treatment relanonship Frequency of examinanons Purpose and extent of treatment relanonship Examining relanonship ConsideraNon of these issues may help demonstrate longitudinal understanding or knowledge of impairment 29 "Other Factors" Proposed version listed familiarity with other evidence in the claim or understanding of disability policies and evidennary requirements separately Favored SSA s MCs & PCs? Final rule combines factors 82 Fed. Reg

14 Section A National Social Security Disability Law Conference "Other Factors" Final rule also revised to recognize that new evidence submi^ed aner the MC or PC has rendered an opinion might make the opinion more or less persuasive 20 C.F.R c(c)(5) & c(c)(5). 31 How Will Factors be ArNculated? Adjudicators are not required to arnculate individually how they considered each medical opinion when a medical source provides mulnple opinions 20 C.F.R c(b)(1) & c(b)(1). 32 How Will Factors be ArNculated? Most Important Factors Adjudicators must explain how they considered consistency and supportability when they arnculate their consideranon of medical opinions But NOT required to explain how other factors were or were not considered 20 C.F.R c(b)(2) & c(b)(2) 33 14

15 Articulating a New Standard for Treating Source Evidence Section A How Will Factors be ArNculated? ConsideraNon of other factors must be arnculated only if there are two or more conflicnng but equally persuasive medical opinions or prior administranve findings 20 C.F.R c(b)(3) & c(b)(3) 34 Consider vs. Evaluate Factors? AdopNon of the term evaluate could imply a need to provide wri^en analysis, which is not what we intend Consider is easily disnnguishable from the arnculanon requirements 82 Fed. Reg Non-Medical Sources Adjudicators will not be required to arnculate how evidence from non-medical sources was considered Adjudicators have discrenon whether to discuss opinions from these sources 20 C.F.R c(d) & c(d) 36 15

16 Section A National Social Security Disability Law Conference Non-Medical Sources 20 C.F.R & Includes educanonal and social welfare agency personnel, family members, caregivers, friends, employers, etc. Evidence from non-medical sources considered under 20 C.F.R b & b? But for claims filed before 3/27/27, see revised 20 C.F.R (f) & (f) 37 Teacher Opinions Non-medical source can provide helpful longitudinal evidence about how an impairment affects a person's funcnonal abilines and limitanons on a daily basis, especially in claims for child disability 82 Fed. Reg But SSA refuses to give controlling or special weight to teacher opinions 82 Fed. Reg Decisions of Other Agencies Decisions by other governmental agencies and nongovernmental ennnes are specifically categorized as evidence that is inherently neither valuable nor persuasive 20 C.F.R b(c) & b(c) Provisions of SSR 06-3p related to weighing other agency decisions specifically rescinded 39 16

17 Articulating a New Standard for Treating Source Evidence Section A Other "Non-Persuasive" Evidence Evidence inherently neither valuable nor persuasive includes statements that claimant is disabled or unable to work has a severe impairment sansfies the duranonal requirement meets or equals a lisnng 20 C.F.R b(c)(3) & b(c)(3) 40 SSRs Rescinded SSR 96-2p InstrucNons on weighing opinion evidence rendered obsolete by new rules SSR 96-5p New rules relieve adjudicators of obliganon to consider medical source opinions on issues reserved to the Commissioner, as such opinions now considered inherently neither valuable nor persuasive 41 SSR 96-6p Rescinded & Replaced SSR 17-2p Evidence Needed by Adjudicators at the Hearings and Appeals Council Levels of the AdministraNve Review Process to Make Findings about Medical Equivalence Published & effecnve 3/27/17 Replaces rescinded SSR 96-6p ConsideraNon of AdministraNve Findings of Fact by MCs & PCs; Medical Equivalence 42 17

18 Section A National Social Security Disability Law Conference SSR 17-2p - Equivalency Equivalency determinanon is responsibility of the adjudicator to make But adjudicator cannot make an equivalency determinanon without an opinion from a nonexamining agency consultant But agency consultant findings not binding on adjudicator Adjudicator must arnculate equivalency met But need not arnculate how/why not met 43 SSR 06-3p Rescinded See supra Rescinded effecnve 3/27/17 Provisions (some) of SSR 06-3p incorporated into revised 20 C.F.R (f) & (f) for cases pending prior to 3/27/27 Query whether SSR 06-3p snll effecnve in pending cases? 44 Status of TreaNng Sources Now? Although not acknowledged in the rules, per SSA, the final rules also connnue to allow an adjudicator to consider an individual s own medical source s medical opinion to be the most persuasive medical opinion if it is both supported by relevant objecnve medical evidence and the source s explananon, and is consistent with other evidence 82 Fed. Reg

19 Articulating a New Standard for Treating Source Evidence Section A Status of TreaNng Sources Now? SSA cites its connnued reasonable efforts to obtain evidence from claimants medical sources (MSs) But did not specifically respond to concerns that unless prompted by quesnonnaire (and paid!), MSs unlikely to address funcnonal limits Concern that without specific MS opinion, SSA will request and rely on CEs 82 Fed. Reg Medical Sources as CEs? SSA s preference for treanng sources as CEs broadened to include all medical sources 20 C.F.R (h) & (h) 82 Fed. Reg. 5851; 81 Fed. Reg Feasible??? 47 Strategies? Consistency of treatment notes with opinion? Overemphasis on stable, alleged improvement? Unreasonable expectanon that treatment notes would contain funcnonal assessments? Overemphasis on mental status exams, GAF scores? ObligaNon to clarify MSS? Be^er MSS quesnonnaires? Ideas??? 48 19

20 Section A National Social Security Disability Law Conference Contact InformaNon Speaker Name (1) LOUISE M. TARANTINO Title Senior A<orney Organiza@on Empire Jus@ce Center, Albany, NY Phone: ltaran@no@empirejus@ce.org Website: Speaker Name (2) CATHERINE M. (KATE) CALLERY Title Senior A<orney Organiza@on Empire Jus@ce Center, Rochester, NY Phone: kcallery@empirejus@ce.org Website: