Gardberg & Kemmerly, P.C. Attorneys at Law

Comment to the Social Security Administration's Proposed "Revisions to Rules Regarding the Evaluation of Medical Evidence"

As an attorney practicing Social Security Disability and Veterans Disability in Alabama, Florida, and Mississippi, I represent hundreds of disabled workers and veterans at all levels of the disability process from initial application to appeals in Federal Court. On behalf of my clients, I am responding to the proposed rule titled, "Revisions to Rules Regarding the Evaluation of Medical Evidence" as published by the Social Security Administration in the September 9, 2016, Federal Register. Although I approve of the proposed expansion on the definition of medical sources, I cannot support nor agree with the elimination of all deference to treating physicians and the complete disregard of disability decisions made by other governmental or nongovernmental agencies.

  1. Expansion of the definition of Medical Sources

As the proposed rule suggests, our current definition of "medical sources" is archaic. Under the current policy, acceptable medical sources include licensed physicians, licensed or certified psychologists, licensed optometrists, and qualified speech-language pathologists. However, this definition no longer portrays an accurate depiction of the national healthcare system. It is no longer feasible nor practical for patients to be seen only by physicians. It is now quite common for a patient to see a certified registered nurse practitioner, physician assistants, or audiologists instead of seeing the physician. For those with limited access to healthcare, either due to the rural area or lack of insurance, treatment from an Advanced Practice Registered Nurse (APRN) is the only accessible medical care. While I agree with the proposed change to include APRNs and licensed audiologists, the expansion does not go far enough. The proposed rule should also include physician assistants and licensed clinical social workers. The quality of care received at the hands of APRNs, physician assistants and licensed clinical social workers is indistinguishable from that of a licensed physician or psychologist. Expanding the definition of medical sources will greater reflect the current state of our national healthcare system and the current treatment that Claimants are receiving.

2. Elimination of the "Treating Physician Rule"

The proposed rule would eliminate an Administrative Law Judge's duty to assign specific weight to medical opinions and prior administrative medical findings. The persuasiveness of medical opinions and prior administrative medical findings would now be considered equally with no deference being given to a treating physician. The proposed rule would rely more on the content of the medical opinions, i.e. consistency and supportability, rather than the source of the opinion. The proposed rule cites several "adjudicative issues" that have arisen due to the treating physician rule: 1) Administrative Law Judges are having to make multiple findings due to several treating physician opinions, 2) Federal Courts are issuing remands after finding an Administrative Law Judge failed to properly reject treating physician's opinion, and 3) many Claimants "failure" to develop a sustained relationship due to seeing multiple medical professionals.

In holding all opinions to an equal standard, the proposed rule would allow for an opinion from a Claimant's treating doctor of 10 years to be considered equally with that of a State agency doctor who has never met the Claimant but merely reviewed his or her medical records. The proposed rule seems to forget the underlying principle behind the Treating Physician Rule: a treating physician is better able to provide a detailed and longitudinal picture of a Claimant's medical impairments. More specifically, a physician who has treated and examined a Claimant on a prolonged basis is in a better to position to evaluate the severity of a Claimant's impairments. Because the effects of a person's medical condition varies widely depending on the person, a treating physician is better able to determine the subjective component of medical impairments.

Consultative examiners hired by the Social Security Administration determine the Claimant's residual functional capacity after having spent 10 minutes with the Claimant. Consultative examiners are limited by the Social Security Administration in the location and number of x-rays that can be taken, the documents that can be reviewed, and the time spent with each Claimant. More often than not, consultative examiners are only privy to the information that the Social Security Administration provides and a brief medical history given by the Claimant. Moreover, Claimants and their representatives are not told what documents are sent to a consultative examiner. Due to these circumstances, consultative examiners are not in a better position than that of a treating physician to know the severity of a Claimant's medical impairment.

The proposed rule states that if an opinion is well-supported and consistent with the other evidence of record, Administrative Law Judges should find it "persuasive." However, Administrative Law Judges would not be required to defer or assign any specific evidentiary weight and could still consider the value of the opinion regardless of its consistency. The proposed rule allows for a supported and consistent opinion from a treating source to still be rejected by the Administrative Law Judge in favor of a state agency reviewing physician or a consultative examiner. The proposed rule allows far too much discretion to the Administrative Law Judge to decide how a persuasive opinion should be utilized in rendering a decision.

Three adjudicative issues were offered to show the difficulties associated with the Treating Physician Rule. However, two of the issues center on the inability of an Administrative Law Judge to properly apply the rule as well as extra work that is now being required of the Administrative Law Judge in order to properly apply the rule. Claimants should not be penalized because Administrative Law Judges fail to correctly apply the rule. Administrative Law Judges are tasked with evaluating the evidence, applying the rules and regulations of the Social Security Administration, and making a decision. The error is not the rule itself but rather with the inaccurate application of the rule. Similarly, Claimants should not be penalized for utilizing their right to appeal an unfavorable decision to a higher court. The Treating Physician Rule is not outdated nor is it cumbersome. Administrative Law Judges must receive more thorough training in order to properly apply the rule.

Another "adjudicative issue" identified is the failure to identify a treating physician due to the changing healthcare system. While some Claimants who are receiving treatment from clinics and health departments do see more than one doctor, many Claimants can easily identify a treating physician whether it be their primary care doctor, neurologist, orthopedist, or oncologist. Identifying a treating physician is again a requirement for the Administrative Law Judge. Administrative Law Judge's must evaluate the nature and extent of the treatment relationship, the length of the treatment relationship, and the frequency of examination. This issue could also be solved with more in depth training for Administrative Law Judges.

The proposed rule would reduce the accuracy of decisions. The proposed rule would give less guidance and more discretion to adjudicators on how to weigh evidence while at the same time eliminating the requirement that an adjudicator articulate how he or she did so. Allowing Administrative Law Judges to disregard relevant evidence due to voluminous case files deprives a Claimant of his or her right for the decision to be made on the totality of the evidence. Treating Physicians are in the best position to know the true nature and severity of a Claimant's impairment. Elimination of the treating physician rule would further handicap the disabled in a process which is already financially, mentally, emotionally, and physically burdensome.

3. Refusal to Consider Other Governmental Agencies Decisions

The proposed rule would also see the removal of an Administrative Law Judge's duty to consider evidence of a disability decision by another governmental or nongovernmental agency. The proposed rule has stated that the decisions made by other governmental or nongovernmental agencies are "inherently neither valuable nor persuasive to our disability and blindness determinations." While the Social Security Administration should not be bound by the decision of another agency, to say that the decision does not have value to an Administrative Law Judge is preposterous. Decisions from other governmental agencies help to provide insight into a Claimant's mental and physical impairment. For example, a 100% VA disability rating for PTSD is valuable and persuasive to show that the Claimant's mental impairments would severely limit the potential occupational base and justify a finding of disability. While some files do not have all the information surrounding another agency's determination, many do and Administrative Law Judges should be required to consider this information when it does appear.

Moreover, if an Administrative Law Judge is no longer required to assign any particular weight or to analyze a decision from another agency, how will Claimants and their representatives know an Administrative Law Judge even considered the evidence? Far too often, Administrative Law Judges are not considering or even reading evidence submitted on behalf of the Claimant. The current rule requires Administrative Law Judges to delineate what evidence was considered and the weight assigned to each piece of evidence. It ensures the Claimant that the evidence was read and considered by the Administrative Law Judge when making the determination. The proposed rule blurred

In conclusion, although I applaud the proposed rule's inclusion of APRNs and audiologists to the list of acceptable medical sources, the rule does not go far enough. Physician assistants and licensed social workers should also be considered as acceptable medical sources. The elimination of the treating physician rule would greatly damage a Claimant's ability to successfully apply and be approved for Social Security disability. The proposed rule values Administrative Law Judges' time and reputation and the Social Security Administration's budget over a Claimant's welfare. Moreover, Administrative Law Judges should be required to analyze and assign weight to disability decisions by other governmental agencies. The proposed rule will disadvantage Claimants in a system that is already far too difficult to navigate and win. As a practitioner of both Social Security disability and Veterans disability, I vehemently oppose the revisions described in the propose rule and ask for the Social Security Administration to consider the harm that said changes will have on Claimants.

Thank you for your consideration and attention in this matter. Please contact me if you have any questions or need any further information at 251-343-1111 or wbutts@gardberglaw.com

Respectfully submitted,

Ann Winslow Butts

Associate Attorney

Gardberg & Kemmerly, P.C.

Mobile, Alabama

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