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).

The Social Security Administration (SSA) has issued a ruling regarding evaluation of symptoms.  This ruling rescinds SSR 96-7p and eliminates the term “credibility” from policy.

In evaluating symptoms, SSA first determines whether there is an underlying medically determinable physical or mental impairment that is reasonably expected to produce the individual’s symptoms.  Medical signs or laboratory findings must show a medically determinable impairment.  SSA does not consider whether the severity of the alleged symptoms is supported by objective medical evidence.

If there an underlying physical or medical impairment, then SSA evaluates the intensity and persistence of the symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities for an adult, or to function independently in an age-appropriate manner for children.  In considering the intensity, persistence and limiting effects of an individual’s symptoms, SSA examines the entire case record, including objective medical evidence, the individual’s statements, other information provided by medical sources and individuals and any other relevant evidence in the record.

SSA first examines objective medical evidence.  However, an individual’s statements about intensity, persistence and limiting effects of symptoms cannot be disregarded because objective medical evidence does not substantiate the degree of impairment the individual alleges.

If objective medical evidence does not allow for a fully favorable decision, then SSA considers other evidence, including the individual’s statements, medical sources, and non-medical sources.  Factors SSA considers are: daily activities; location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate symptoms; dosage, effectiveness and side effects of medication; treatment other than medication and other measures used to relieve symptoms such as lying on the back or sleeping on a board.

If the individual’s statements are consistent with objective medical evidence, SSA will determine that the symptoms are more likely to reduce capacity for work related activities.  SSA also considers the consistency of the individual’s statements.  However, inconsistent statements do not necessarily mean statements are inaccurate because symptoms may vary, worsen or improve over time.

SSA considers attempts to seek and follow medical treatment once it is prescribed in evaluating symptom intensity and persistence.  However, SSA will not find an individual’s symptoms inconsistent with the evidence without considering possible reasons for not seeking or complying with treatment.  Factors SSA may consider include: the individual may have structured activities to reduce symptoms to a tolerable level, the individual may receive periodic treatment or evaluation for medication refills because symptoms have plateaued, medication side effects are less tolerable than the symptoms, inability to afford treatment, a medical source advises that there is no further effective treatment, or a mental impairment limits the ability to understand the need for treatment.

Determinations or decisions must contain specific reasons for the weight given to symptoms consistent with and supported by the evidence, and be clearly articulated to allow the individual and any subsequent reviewer to assess how the adjudicator evaluated the symptoms.  Adjudicators cannot assess overall character or truthfulness.  Adjudicators can only focus on the evidence presented.  SSR 16-3p (March 28, 2016).

Social Security has rewritten the listings for neurological disorders effective September 29, 2016.

The revised introduction to Listing Section 11.00 includes criteria for how to establish “disorganization of motor function” and how to evaluate those criteria.  If Social Security does not find a person disabled on this basis alone but finds marked limitation in physical function and any one of four areas of mental function, it will find no residual functional capacity for work.

Some of the highlights of the changes are: epilepsy is combined into revised and expanded Listing 11.03, the IQ factor for cerebral palsy in Listing 11.07 is removed, listing 11.09 for Multiple Sclerosis now includes marked limitation in physical functioning in addition to mental functioning, listing 11.20 for coma or persistent vegetative state persisting for at least one month is added, and listing 11.22 for motor neuron disorders other than ALS is added.

The children’s listings are rearranged to more closely parallel the adult listings. Listing 111.06 for motor dysfunction is removed.

Revised Medical Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 43048 (July 1, 2016).

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).