New Social Security Ruling for Disability Cases - Melvin
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New Social Security Ruling for Disability Cases

by Melvin Cook

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Social Security has enacted a new ruling for disability cases.

Social Security Ruling (SSR) 16-3p supercedes SSR 96-7p. This new ruling provides guidance for evaluating symptoms in disability claims. The old ruling was one of the so-called “process unification” rulings issued in 1996 to streamline the disability adjudication process.

I will attempt to summarize the new ruling here.

The new ruling eliminates the use of the term “credibility.” In doing do, the ruling makes clear that adjudicators will not assess an individual’s overall character or truthfulness in the manner typically used in adversarial litigation.

This is a welcome change, in my opinion. In many of the denial decisions I have seen, the exact same boilerplate language is used. And I quote:

“After careful consideration of the evidence, the undersigned finds that the [claimant’s] medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, however, his (or her) statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.”

This kind of a statement would often come as a shock to a claimant who has been waiting, in some cases, two years or more for a hearing.

But just because the word “credibility” is eliminated from the adjudication process, this does not mean that a rigorous vetting and analysis of an individual’s symptoms does not take place. But it takes on a different form, avoiding language that tends to diminish a claimant’s integrity.

Symptoms are defined as an individual’s own description of his or her physical or mental impairments.

Social Security adjudicators must follow a two-step process in evaluating symptoms.

First, they must consider whether there is an underlying medically determinable impairment which could reasonably be expected to produce the individual’s symptoms, such as pain.

Second, once a medically determinable impairment that could reasonably be expected to produce the individual’s symptoms is established, the adjudicator must evaluate the extent to which the symptoms interfere with the individual’s ability to perform work-related activities; or, in a child’s case, to function independently, appropriately, and effectively in an age-appropriate manner.

With respect to Step One, an individual’s symptoms (i.e., pain, shortness of breath, weakness, fatigue, nervousness, poor concentration, etc.) will not be found to affect her ability to perform work-related activities unless medical signs or laboratory findings show a medically determinable impairment is present.

Signs are defined as anatomical, physiological, or psychological abnormalities established by medically acceptable clinical diagnostic techniques.

Laboratory findings are defined as anatomical, physiological, or psychological phenomena, which can be shown by the use of medically acceptable laboratory diagnostic techniques.

The medical evidence that provides signs or laboratory findings is referred to as objective medical evidence.

When there is insufficient objective medical evidence to make a determination, social security may request additional evidence from the individual, clarifying information from medical sources, or send an individual to a consultative examination which may include diagnostic testing.

Social Security cannot find an individual disabled based on alleged symptoms alone.

With respect Step Two, an adjudicator must determine the intensity and persistence of the individual’s alleged symptoms and the extent to which they limit his or her ability to perform work-related activities.

Some individuals may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other individuals with the same medical impairments, the same objective medical evidence, and the same non-medical evidence.

Social Security will not evaluate an individual’s symptoms based solely on objective medical evidence unless the objective medical evidence alone supports a finding that the individual is disabled.

Social Security will make every attempt to obtain a complete medical history. A complete medical history means the individual’s medical history for at least the 12 months preceding the month in which she filed an application for disability, unless there is reason to believe that development of an earlier period is necessary or the individual says that his or her alleged disability began less than 12 months before she filed an application.

The intensity and persistence of symptoms may be clinically observed and recorded in the medical evidence. Examples of such clinical observations include: reduced joint motion, muscle spasm, sensory deficit, and motor disruption.

For example, an individual who alleges that she has been experiencing pain for the past year such that her ability to stand and walk has been seriously compromised may be expected to show some signs of muscle wasting as a result.

Social Security must consider the record as a whole in determining the limiting effects of a person’s symptoms. This can include consideration of evidence from the individual, the individual’s family, medical sources, or other sources, such as agency personnel.

Sometimes an individual, such as a child or incapacitated person, is unable to adequately describe her symptoms. In such a case, social security will attempt to elicit this information from the person most familiar with the individual, such as a parent, another relative, or a guardian.

Social Security will consider an individual’s statements regarding the location, frequency and duration of her symptoms such as pain, as well as activities that precipitate or aggravate the symptoms. In addition, adjudicators will consider treatments and methods the individual has used to alleviate the pain.

Adjudicators at the hearing level or Appeals Council level must consider medical opinions of agency personnel at a lower level of determination (i.e., the initial and reconsideration stages), although they are not bound by these opinions.

Examples of non-medical sources of evidence that can be considered include public and private agencies, other practitioners, educational personnel, family and friends, and agency personnel.

Social Security will consider the following factors in evaluating the intensity and persistence of a person’s symptoms, and their limiting effects:

  1. Daily Activities;
  2. The location, duration, frequency, and intensity of pain or other symptoms;
  3. Factors that precipitate or aggravate the symptoms;
  4. The type, dosage, effectiveness, and side effects of any medication an individual takes to alleviate pain or other symptoms.
  5. Treatment, other than medication, an individual has receved fjor relief of pain or other symptoms;
  6. Any measures other than treatment an individual has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes evey hour, or sleeping on a board); and
  7. Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms.

In making a determination, Social Security will consider the consistency of an individual’s own statement. However, inconsistencies in an individual’s statements at varying times does not necessarily mean these statements are inaccurate, as pain or other symptoms may vary over time. The record as a whole must be considered.

Social Security will consider the frequency or extent of treatment sought, or failure to follow prescribed treatment. However, Social Security will consider reasons the individual did not comply with treatment or seek treatment consistent with the degree of his or her complains.

For example:

A person may receive only periodic treatment or medical refills because his or her symptoms have reached a plateau.

A person may not agree to take certain medications because the side effects are less tolerable than the symptoms.

A person may not be able to afford treatment or may not have access to free or low-cost medical treatment.

A medical source may have determined there is nothing more than can be medically done for the individual.

It is insufficient for an adjudicator to make a single, conclusory statement that “the individual’s statements about his or her symptoms have been considered.” The determination or decision must contain specific reasons for the weight given to the individual’s symptoms, and be consistent with and supported by the evidence, and must be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.

The new ruling is similar in many ways to the old ruling. However, it is heartening to consider that the agency will not engage in so-called character assassinations that often characterize adversarial litigation. This gives the individual comfort to know that his or her case will be considered on the entirety of its merits, without attempting to diminish his or her character.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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