Next Tuesday, November 8, 2016, is a big, big day. Yes, it's the day of the Presidential Election, but you've already heard plenty about that, and I'm not going to talk about it here. It's ALSO the last day to comment on a huge set of rule changes proposed by Social Security!
For the non-lawyers in the audience, if you're not familiar with the way federal agencies make their rules, there's a process called "Notice and Comment Rulemaking." Basically, Congress writes and passes laws in the form of statutes, then the Agencies that are tasked with enforcing or administering those laws write regulations (which also have the force of law) through the Notice and Comment process. Before making or changing regulations, the Agency is required to publish a "Notice of Proposed Rulemaking" (NPRM) in the Federal Register (which is available online), and then the public gets to submit comments about what they think about the rule. The Agency is then required to consider those comments, and explain how it considered them, before actually enacting the final rule. There's no hard-and-fast rule, but generally, the more comments an Agency gets in opposition to a rule, the less likely they are to adopt it.
Recently, Social Security issued a Proposed Rule that has a comment deadline of next Tuesday, Election Day. The rule changes they are proposing make broad, sweeping changes to the way evidence of disability is considered in Social Security claims. First and foremost, they are proposing to do away with what many consider to be the cornerstone of Social Security disability law - the "treating physician rule." For many, many years now, the rule in Social Security has been that the opinion of a claimant's own treating doctor must carry the most weight, as long as it is consistent with the medical evidence. Under the proposed new rule, that would be done away with. Social Security's back-room doctors, who never meet the claimant, could be the controlling opinions on future claims if this rule is adopted.
The other major issue, of particular concern to Veterans, is a rule regarding decisions by other entities or agencies. Currently, Social Security is required to consider (but not necessarily adopt) decisions by other governmental and non-governmental entities, such as worker's compensation insurers, long term disability insurers, and perhaps most importantly, decisions of disability by the U.S. Department of Veterans Affairs. Here out West (areas under the authority of the 9th Circuit Court of Appeals), VA decisions are required to be given "great weight" by a Social Security judge, unless the judge can explain why the VA decision was made under different rules than Social Security's rules. There are similar rules, requiring various levels of analysis, across the country. For more on how this works, and some of the cases involved, you can check out an article I wrote on the subject here.
Social Security claims in its proposed rule that it shouldn't have to pay attention to what the VA says because the rules for determining disability are different under the two programs, and that's partially correct. For example, a finding by the VA that a Veteran has a 20% disability because of facial scarring might receive little weight in a Social Security claim, and rightfully so, because that finding has little to do with what Social Security is tasked with deciding, which is vocational disability (an inability to perform full-time work because of a medical condition).
But Social Security's explanation of the law on this topic is misleading, because it is incomplete. Many Vets are found to have very high ratings of disability due to PTSD, traumatic brain injuries, or other physical injuries suffered in the line of duty. Many of these ratings contain within them implicit findings by the VA about the individual's ability to work. For PTSD, in particular, a rating of 70% means, by law, that VA has determined the individual to have significant problems in a workplace environment. A rating of 100% due to PTSD means that the Veteran can barely function at all, at home or at work, etc. Then, there are issues of "Total Disability due to Individual Unemployability," or "TDIU," where a Veteran who does not have a combined rating of 100% can still be paid as if he did, if he can prove to the VA that he is completely unable to work due to his service-connected disabilities.
So TDIU means a Veteran has been found by an independent government agency to be completely unable to perform sustained, gainful work. That's the same question Social Security is trying to answer, and under their current rules, they are supposed to give those decisions "great weight." Now, they are proposing to eliminate that rule, and under the proposed rule, would specifically state that they find such outside decisions to be unhelpful, and will neither give them significant weight, nor will they even be required to explain their analysis of those decisions or explain what weight they were given, if any.
In addition to these rule changes, the proposed rule would significantly lower the requirements that Social Security judges explain their decisions in writing, so that they can be understood by the claimant and by the federal courts, if a denial is appealed. Under current rules, Social Security judges have a legal duty to explain what weight they gave to various types of information, and how they reached those decisions. Those are often called "articulation standards," and they are one of the most common reasons that disability denials are overturned in federal court on appeal - judges often simply fail to explain how they evaluated the evidence, so the claim is sent back to them with instructions to explain it better. If these proposed rules are adopted, judges can get by with, essentially, a summary dismissal of Social Security disability claims. On appeal, the federal courts will be largely unable to figure out whether Social Security's decision is correct, because of the lowering of these standards.
It's not all bad news, though - there are some good ideas in the proposed rules, which I would encourage Social Security to adopt, including changing the definition of what is an "acceptable medical source." Currently, only an M.D., D.O., or Ph.D., is a "real doctor" in Social Security's system, and everyone else, including highly-qualified counselors and nurse practitioners, is classified as an "other medical source." Their opinions can be given some weight, but they cannot be ones to diagnose a condition for the first time, and their opinions generally do not receive much weight from Social Security's judges. The current proposed rule would expand the definition of who is an "acceptable medical source" to include those sorts of highly-qualified non-doctors, which would be a good thing for claimants, who often don't get (and don't necessarily need) access to "real doctors."
So, I am encouraging everyone I can reach to file comments about these various aspects of Social Security's NPRM before next Tuesday's deadline. You can find the proposal and the comments that have already been submitted here: https://www.regulations.gov/docket?D=SSA-2012-0035. You can either upload a separate document, if you want to get "fancy," or you can submit your comments right there in the web interface. [edit: I have added sample language that you are free to use below, if anyone wants something to "go by" when making their comments].
Use your voice! Let Social Security know what you think!
--Jeremy Bordelon
***EDIT/UPDATE***
I encourage everyone to make their voices heard on this issue, but if you would like somewhere to start, I will include a proposed draft comment below. Edit and change and use as much or as little as you like, no need to attribute anything to me.
Carolyn Colvin
Acting Commissioner
Social Security Administration
6401 Security Boulevard
Baltimore, MD 21235-6401
RE: Revisions to Rules Regarding the Evaluation of Medical Evidence (Docket No. SSA-2012-0035)
Dear Acting Commissioner Colvin,
As a concerned citizen, I write to voice my general opposition to your Agency's proposed rule change. It is very clear from the data that Social Security makes available to the public that the process of obtaining Social Security disability benefits has gotten more delayed and more difficult in recent years, and these rule changes would only make that problem worse.
First and foremost, the treating physician rule should be kept. It has long been recognized that a person's own treating physician has the best knowledge of their condition, and their opinions should continue to receive controlling weight. Other than making it easier to deny people benefits, there is no good reason in the proposed rule for making this change, so it should not be adopted. However, I encourage you to adopt your proposed rule expanding the definition of acceptable medical sources. Not only should treating doctors' opinions receive controlling weight, so should treating nurse practitioners and other highly-skilled medical professionals. As your Agency has recognized in the past, the way people receive medical treatment has changed drastically in the last 15+ years, and many people do not see an M.D. for their treatment at all.
You should also keep the rule requiring consideration of other governmental agency decisions, particularly those of the Department of Veterans Affairs. Your current rule already takes into account the differences between VA disability and Social Security disability. Veterans with relatively minor disability ratings are not being automatically approved for Social Security disability benefits under the current system, so it is not clear what problem you are trying to solve with these proposed rules. You should keep the current rules, which require Social Security to consider findings of other Agencies like the VA. In fact, you should adopt a rule stating that when a Veteran is found 100% disabled by the VA, or found to be unemployable because of his or her service-connected disabilities (TDIU), they are presumed to be disabled under the Social Security system. This would not only promote uniformity across federal benefit systems, but it would encourage efficiency and ensure that disabled Veterans promptly receive the benefits they have earned.
Finally, you should also continue to require that Social Security judges explain their decisions in a manner that can be fully understood by claimants and by the federal courts. Your proposed rule would lower these standards significantly, and this would be unfair. If a claimant cannot tell how the Social Security judge made his or her decision, and the federal court cannot tell how the Social Security judge made the decision, how is there going to be any meaningful review of those decision, to ensure that they are correct?
I urge you to withdraw this proposed rule, aside from the expansion of acceptable medical sources.
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