October 4, 2016
On September 9, 2016, the Social Security Administration (SSA) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (FR) whereby they announced their intent to make substantial revisions to how medical evidence will be considered in claims for disability benefits under the Social Security Act. Their proposed changes include redefining key terms in the regulations, revising what they consider to be acceptable medical sources, revising how they will consider medical opinions and decisions made by other entities or agencies that an individual is disabled, among numerous other changes. They are accepting comments from the public on the proposed changes until November 8, 2016.
The Social Security Act requires that an individual must have a severe medical impairment that is supported by “medically acceptable clinical or laboratory diagnostic techniques.” In 1991, SSA adopted medical evidence rules that regulate how agency adjudicators are to consider the medical evidence that is provided in support of a claim for disability benefits or produced as the result of an examination ordered by the agency. These rules promulgated what is commonly known as the “treating physician rule” which requires SSA to give controlling weight to the opinions of a claimant’s treating sources if they are well supported and not inconsistent with the other substantial evidence in the record. In 2000, the rules were modified to clarify who could, and who could not, be considered an acceptable treating source (e.g., chiropractors would no longer be considered treating physicians).
In 2012, SSA commissioned the Administrative Council of the United States (ACUS), an independent federal agency that provides advice and recommendations for the improvement of federal agency procedures, to provide recommendations the evaluation medical evidence in the claim adjudication process. ACUS issued their recommendations in April of 2013. Those recommendations as well as mandates set upon the agency in the Bipartisan Budget Act of 2015.
The major proposals are to reorganize and define categories of evidence. The category that the evidence falls in would then guide the decision maker on how to consider that evidence. The proposed categories of evidence are: 1) objective medical evidence, 2) medical opinions, 3) other medical evidence, 4) statements from nonmedical sources, and 5) prior administrative medical findings.
This proposed approach would allow medical opinions from all medical sources, not just acceptable medical sources, to be categorized as medical opinions. Also, determinations made at earlier stages of the administrative review process will now be considered in their own category (“prior administrative findings”), and would no longer be considered as medical opinions.
SSA is also proposing changing how they will consider decisions made about an individual’s disability made by other agencies or entities. Several other governmental agencies and nongovernmental entities make decisions using their own rules about disability, blindness, and employability. These organizations include the Department of Veterans Affairs (VA), the Department of Defense (DOD), the Office of Personnel Management (OPM), the Department of Labor (DOL), State workers compensation programs, and private long-term disability insurance programs. SSA’s current rules state that these decisions are not binding on them because they must make a disability decision based on their regulations. In the proposed regulations, they are removing the requirement that they have to consider decisions made about an individual’s disability. Therefore, other disability determinations will not need to be analyzed in the deciding whether someone is disabled under SSA’s rules.
The proposed rule changes are still in the notice and comment period of the Rulemaking process required by the Administrative Procedures Act. Once the comment period closes (November 9th), SSA is required to review and consider all of the comments submitted. They can then issue a final rule which will have the effect of changing the regulations.
Nothing in this post is intended as advice or a suggestion to elect or not elect to claim benefits of any kind, including Social Security benefits, nor is it intended as financial advice in any way. The decision to claim benefits is a personal one that is contingent upon each individual’s unique circumstances.