Office of Regulations and Reports Clearance
Social Security Administration
3100 West High Rise Building
6401 Security Boulevard
Baltimore, Maryland 21235-6401
To Whom It May Concern,
As an attorney representing individuals in disability cases before the Social Security Administration (SSA) and Veterans Administration (VA) for over 20 years, I have helped thousands of clients obtain the disability benefits they deserve. 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, such as the VA. I find the proposed changes to the treating physician rule and the governmental agency decisions to be anti-claimant, anti-physician, and anti-veteran. I must object to these two proposed changes.
1. Refusal to Consider Other Governmental Agencies Decisions
The proposed rule would eliminate an Administrative Law Judge’s current duty to articulate reasons for rejecting 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 absurd. Disability decisions from other governmental agencies help to provide insight into a claimant’s mental and physical impairment. For example, a VA disability rating which entitles a veteran to total disability individual unemployability (TDIU) is valuable and persuasive to show that the claimant’s mental or physical impairments would severely limit the potential occupational base and justify a finding of disability.
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 were 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 Social Security Administration’s four reasons for proposing to eliminate the duty to articulate reasons for rejecting a disability decision by another governmental agency are without merit.
First, although other governmental agency or non-governmental agency rules may be different, that does not excuse SSA adjudicators from giving reasons while they are rejecting the decision.
Second, if the decision is not in evidence, or does not include factual findings explaining the decision, then the adjudicator can give that as a reason to not assign weight to the decision.
Third, if the adjudicators do not know or have understanding of other agency rules and regulations, then they should learn. This is especially true for VA decisions. Claimant/veterans and their representatives must learn the rules and the differences between the governmental disability programs, so it seems SSA adjudicators can also.
Fourth, the fact that different circuits have interpreted and applied SSR 06-03 in different ways establishes that the SSA adjudicators are not following the rule. A Federal Circuit reviews unfavorable disability decisions, so if it remands a case back to an adjudicator; it is because the Social Security rule was not followed. Social Security should not be able to place blame for this on the claimant. The solution is not to eliminate the Rule not being followed, but to follow the rule.
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.
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. Treating Physicians are in the best position to know the true nature and severity of a claimant’s impairment.
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. 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. I believe the proposed changes regarding the treating physicians rule and the articulation of reasons to reject other governmental and non-governmental agency disability decisions WILL INCREASE THE NUMBER OF APPEALS filed on behalf of claimant. This in turn will increase remands back to the agency. 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 [email protected]
Colin E. Kemmerly
Gardberg & Kemmerly