The Social Security Administration (SSA) has issued a new ruling about the effect of failure to follow prescribed treatment.  In general, an individual who is otherwise disabled is not entitled to Social Security Disability or Supplemental Security Income benefits if they do not follow prescribed treatment that would be expected to restore the ability to perform substantial gainful activity without good cause.

SSA determines whether an individual has failed to follow prescribed treatment when:

1)  The individual would otherwise be eligible for benefits

2)  There is evidence that the individual’s own medical source prescribed the treatment for the impairment upon which the disability finding is based.  Prescribed treatment means medication, surgery, therapy, use of durable medical equipment or use of assistive device.  Prescribed treatment does not include lifestyle modifications such as dieting, exercising or smoking cessation.  SSA considers any evidence of prescribed treatment including prescription forms and medical records.

3)  There is evidence that the individual did not follow the prescribed treatment.

If all these conditions exist, then SSA determines whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to perform substantial gainful activity, and whether the individual has good cause for not following the prescribed treatment.  Good cause includes religion, cost, incapacity that means the individual is unable to understand the consequences of failure to follow prescribed treatment, medical disagreement among individual’s own medical sources, intense fear of surgery, prior unsuccessful major surgery, high risk of loss of life or limb, or risk of addiction to opioid medication.  Good cause does not include the individual’s allegation that they were unaware of the prescribed treatment unless the individual shows incapacity.  If either of these criteria is met, then SSA will not find failure to follow treatment.

To develop failure to follow prescribed treatment, SSA can contact the medical source. SSA can purchase a consultative examination or obtain testimony from a medical expert but is not required to do so.

For listings, if SSA finds failure to follow prescribed treatment without good cause, SSA continues by evaluating residual functional capacity.  For listings, SSA will not find failure to follow prescribed treatment if disability is based on a listing that requires only the presence of laboratory findings, or the listing requires consideration of whether the individual was following a specific treatment.

For residual functional capacity, SSA will find that the individual is disabled if they would be unable to perform substantial gainful activity even if they had followed prescribed treatment.

SSA can reopen a favorable determination or decision if it discovers that it did not apply failure to follow prescribed treatment correctly.

For continuing disability reviews, SSA will make a failure to follow prescribed treatment finding when the individual’s medical source prescribes a new treatment since the last favorable determination without good cause.  SSA also will find failure to follow prescribed treatment for a new impairment alleged during the continuing disability process and there is evidence that the individual did not follow prescribed treatment without good cause.

For drug and alcohol cases where SSA finds that drugs and alcohol are not material to the disability determination, a failure to follow prescribed treatment, SSA does failure to follow prescribed treatment determination only for impairments other than drugs and alcohol.  (SSR 18-03, October 29, 2018.)

The Social Security Administration (SSA) has issued a new ruling about determining the onset date for Social Security Disability and Supplemental Security Income claims.  The established onset date is the earliest date that the claimant meets the both the definition of disability and the non-medical requirements for benefits eligibility.

SSA first determines the potential onset date, which is the earliest date that the claimant meets non-disability requirements.  If the claimant meets the statutory definition of disability on the potential onset date, that date is used as the established onset date.

For impairments that result from a traumatic injury or other traumatic event, the onset date is the date of the traumatic event even if the claimant worked on that date.

Non-traumatic impairments are impairments that are not expected to change in severity over time, impairments that are expected to improve over time, or impairments that are expected to worsen over time.  For non-traumatic or exacerbating and remitting impairments, SSA determines the first date that the claimant meets the definition of disability.  SSA reviews the evidence and considers the nature of the impairment, the severity of signs, symptoms and laboratory findings, the longitudinal history and course of treatment, the length of the impairments exacerbations and remissions if applicable, and any statements by the claimant.  The onset date can predate the earliest recorded medical examination.

SSA considers evidence from other non-medical sources such as family, friends or former employers only if SSA cannot obtain other medical evidence and SSA cannot reasonably infer the onset date from the medical evidence in the file.

At the hearing level, the Administrative Law Judge (ALJ) may call upon a medical expert but the decision to call a medical expert is entirely in the ALJ’s discretion.  The claimant cannot require the ALJ to call a Medical Expert.

If the claimant has both a traumatic and non-traumatic impairments, SSA considers all of the impairments in combination when determining the onset date.

Generally, the claimant’s established onset date is not before the last day the claimant performs substantial gainful activity.  However, SSA can determine the established onset date to be before or during an unsuccessful work attempt.

The established onset date can be in a previously adjudicated period if the claimant meets the definition of disability and applicable non-medical requirements during the previously adjudicated period.  However, it is in the adjudicator’s discretion whether to reopen a prior claim.  (SSR 18-01p, October 2, 2018.)

Social Security has issued a ruling regarding the responsibilities of both the Social Security Administration and the claimant to develop evidence and other information in disability and blindness claims for both SSDI and SSI cases.  The ruling applies at all levels of review, including administrative law judge hearings.

Social Security states that the claimant has the primary responsibility to provide evidence in support of disability or blindness claims.  The Social Security Act also requires the Social Security Administration to make reasonable efforts to obtain all medical evidence from the claimant’s treating source that is necessary to properly evaluate the claim prior to evaluating medical evidence obtained from a consultative source.  Social Security must also develop a complete 12-month medical history when making a disability determination.  This means that Social Security will make an initial request for evidence from the medical source, and will follow up with the provider between 10 and 20 days after the request if it has not received the evidence.

Claimants must submit or inform Social Security of all evidence known to them that relates to the disability claim.  Claimants must submit or inform Social Security of any written evidence no later than 5 business days before an administrative law judge (ALJ) hearing.  The ALJ can ignore evidence submitted less than 5 business days before the hearing unless the claimant demonstrates good cause for late submission.  To satisfy the duty to inform, the claimant must provide information specific enough to identify the source of the evidence and the relevance of the evidence.

Representatives have a duty to assist claimants in obtaining evidence. Representatives must also submit or inform Social Security of evidence as soon as they obtain or become aware of it.  Representatives should not wait until 5 business days before the hearing to submit or inform Social Security of evidence unless they have a compelling reason for the delay.  In addition, representatives cannot inform Social Security of evidence without submitting it unless the representative shows they could not obtain the evidence despite good faith efforts. Violation of these duties can result in referral to the Office of General Counsel for disciplinary action.

At the Appeal Council level, the Appeals Council will not obtain or evaluate additional evidence when deciding whether to grant review unless there is good cause for failure to previously submit it or the case is a SSI claim that is not based on an initial application for benefits (an age-18 redetermination for example).  SSR 17-4p (October 4, 2017).