Social Security has substantially changed the mental impairment listings effective January 17, 2017.  The revisions add three new listed impairments: neurodevelopmental disorders (includes learning disabilities) (new Listing 12.11), eating disorders (new listing 12.13), and trauma- and stressor-related disorders (including PTSD) (new listing 12.15).  The revisions also substantially rewrite the listing for Intellectual Disability (listing 12.05).  Revisions to the children’s listings mirror changes to the adult listings.

The revisions change the “B” criteria.  The new “B” criteria are: Understand, Remember or Apply Information; Interact with Others; Concentrate, Persist or Maintain Pace and Adapt or Manage Oneself.  The revisions add multiple factors to consider for each of the new “B” criteria.

The revisions also require considering homelessness as a factor in difficulty to produce medical evidence.

Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (September 26, 2016).

Social Security has finalized new regulations that change its hearing process.  These are important changes because they change the deadlines and time frames for Social Security hearings.  Three key changes in the process are:

1. Social Security will now give at least 75 days notice of the hearing date.

2. Claimants and claimant’s representatives must now submit evidence, hearing briefs and objections to issues at least five business days prior to the hearing. For evidence that the Claimant has not yet received, the Claimant or claimant’s representative must inform about that evidence.  Exceptions to the five business day rule include disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.

3. When seeking Appeals Council review, any new evidence must be submitted to the Appeal Council with the Request for Review. The Appeals Council will only consider new evidence under limited circumstances, including disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.

Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987 (December 16, 2016).

 

Social Security has issued a ruling regarding evidence needed for a finding of medical equivalence to a listing.  This ruling rescinds and replaces Social Security Ruling 96-6p.

An impairment is considered medically equivalent to a listed impairment if it is at least equal in severity and duration to the criteria of a listed impairment.  Social Security can find medical equivalence in three ways:  1) the individual does not exhibit one or more of the findings required by a listing or one or more of the findings is not as severe as required by a listing, but there are other findings related to the impairment that are at least of equal medical significance to the required criteria; 2) the individual has an impairment not described in a listing but has findings related to the impairment that are at least of equal medical equivalence to an analogous listing or 3) the individual has a combination of impairments no one of which meets a listing but has findings related to the impairment that are at least of equal medical equivalence to an analogous listing

To demonstrate an individual is disabled based on medical equivalence, the record must contain either 1) a prior administrative finding from a medical consultant or psychological consultant; 2) medical expert evidence at the hearing level or 3) a report from the Appeals Counsel medical support staff.  It seems that evidence from the claimant’s provider cannot support a finding of medical equivalence.

An administrative law judge (ALJ) is not required to obtain medical expert evidence if the ALJ believes that the evidence does not reasonably support a finding of medical equivalence.  ALJs are not required to articulate specific evidence to support a finding that an impairment does not equal a listing.  A statement that the impairment does not equal a listing is sufficient.  SSR 17-2p (March 27, 2017).

 

 

 

Social Security has finalized new regulations that dramatically change the way it evaluates evidence.  The new rules are effective for claims filed on or after March 27, 2017.  Most importantly, the new regulations eliminate the “treating physician rule” which required deference to doctors who have a treatment relationship with the claimant.   The new rule calls for evaluating opinions from acceptable medical sources by considering the supportability of the opinion and the consistency of the opinion with underlying medical records.  This evaluation is supposed to consider that the claimant has a longstanding treatment relationship with the treating source.

The new regulations add physician’s assistants, advance practice registered nurses, and, when consistent with scope of practice and state licensing rules, optometrists and audiologists.

The new regulations require express consideration of evidence from all medical sources, including evidence from sources that are not considered acceptable medical sources.  This is the only portion of the new regulations that is effective immediately for all claims.

The regulations expressly do not require a statement of how nonmedical evidence is evaluated.

The regulations state that disability evaluations from other agencies such as the Veterans Administration will no longer be given weight in Social Security’s evaluation.

The regulations repeal Social Security Rulings 96-2p, 96-5p and 96-6p.  The regulations also repeal Social Security Ruling 06-03p but state the substance of that ruling regarding evaluation of medical evidence from sources who are not considered acceptable medical sources is incorporated into the new regulations.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (January 18, 2017).