The Social Security Administration (SSA) has been cleaning house. In the July 2018 edition of this newsletter, we reported on the rescission of Social Security Ruling (SSR) 05-02p on Unsuccessful Work Attempts. SSRs 96-3p and 96-4p, dealing with pain and symptoms were also rescinded as duplicative of SSR 16-03p — Evaluation of Symptoms in Disability Claims.
SSRs 18-01p & 18-02p
And now there are more. On October 2, 2018, SSA rescinded SSR 83-20 “Titles II and XVI: Onset of Disability” and replaced it with SSR 18-01p “Titles II and XVI: Determining the Established Onset Date (EOD) in Disability Claims,” and SSR 18-02p “Titles II and XVI: Determining the Established Onset Date (EOD) in Blindness Claims.” According to SSA, the new SSRs clarify how the EOD is determined in disability claims under titles II and XVI of the Act. Specifically, it addresses how the EOD is determined in claims that involve traumatic, non-traumatic, and exacerbating and remitting impairments.
SSR 18-01p introduces new terminology to disability onset determinations – EOD and POD. The Established Onset Date (EOD) is the earliest date the claimant meets both the statutory definition of disability and the non-medical requirements for entitlement to benefits during the period covered by the application. The Potential Onset Date (POD) is the first date the claimant met the non-medical requirements for the period covered the application. The non-medical requirements could be, for example, other eligibility factors, such as having filed an application, having sufficient QCs in Title II cases, or low enough income and assets in Title XVI claims. The POD is the earliest date SSA considers for the EOD because “it affords the claimant the maximum possible benefits for the period covered by the application.”
Does this terminology represent a significant change? SSR 83-20 defined the onset date of disability as the first day an individual was disabled as defined in the Act and the regulations, which has been interpreted as meeting the disability standard. For Title II, the individual had to meet the disability standard as of the Date Last Insured (DLI). SSR 83-20, however, made clear that while important to the establishment of a period of disability, expiration of the DLI was not itself a consideration in determining when disability first began. Does this now mean the EOD cannot predate the POD, and will that affect a claimant’s ability, for example, to reopen a prior claim? SSR 18-01p does acknowledge that an EOD can be determined to be within a previously adjudicated period. If the rules for reopening are met, reopening would be “at the discretion of the adjudicator.”
Also apparently at the discretion of the adjudicator is the determination of whether to call upon a medical expert to help “infer” the onset date in cases with a non-traumatic or exacerbating and remitting impairment. SSR 83-20 on the other hand provided that the ALJ “should call on the services of a medical advisor when onset must be inferred.” The old SSR also mandated the adjudicator to secure additional evidence if the file indicated other evidence existed. The new SSRs, while suggesting the adjudicator “may” contact a source for additional evidence, imply that the claimant should be encouraged to obtain the evidence.
SSR 83-20 covered determinations of onset in cases involving blindness, as well as other impairments. SSA has now issued SSR 18-02p, which contains similar language to SSR 18-01p, differentiated as applicable for the requirements in claims based on blindness. The SSRs became effective on the day they were published – October 2, 2018.
Thanks to Linda Landry of the Disability Law Center in Boston and Paul Ryther of Bloomfield for their insights into these new SSRs.
On the same day, SSA rescinded SSR 82-59 “Titles II and XVI: Failure to Follow Prescribed Treatment” and replaced it with SSR 18-3p “Failure to Follow Prescribed Treatment.” SSR 82-59 set forth four threshold conditions for finding a claimant failed to follow prescribed treatment, the third of which was whether “[t]reatment which is clearly expected to restore capacity to engage in any SGA (or gainful activity, as appropriate) has been prescribed by a treating source.” The question of whether the treatment is clearly expected to restore capacity to work is absent from the three threshold conditions in SSR 18-3p:
Condition 1: The individual is otherwise entitled to benefits based on disability or eligible for blindness benefits under titles II or XVI of the Act
Condition 2: There is evidence that an individual’s own medical source(s) prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based
Condition 3: There is evidence that the individual did not follow the prescribed treatment.
If all three conditions are met, SSA will assess (1) whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to engage in SGA, and/or (2) whether the individual had good cause for not following the prescribed treatment. Note that unlike SSR 82-59, SSR 18-3p does not require that the treatment is clearly expected to restore capacity. Query how this change will be interpreted by SSA adjudicators?
SSR 82-59’s “justifiable cause” is now “good cause.” The examples of good cause in SSR 18-3p remain essentially similar: religious objections, cost (and demonstrated inability to pay or unavailability of insurance or free coverage), incapacity to decide on treatment, medical disagreement about treatment, demonstrated intense fear of surgery, prior history of unsuccessful treatment, and high risk of loss of life or limb. A new ground for good cause in SSR 18-3p is risk of addiction to opioid medication.
As before, SSA will assess failure to follow prescribed treatment only if the claimant is otherwise found eligible for benefits based on disability or blindness. The SSR details how the assessment is applied throughout the sequential evaluation, as well as in Continuing Disability Reviews (CDRs), child and blindness claims, reopening determinations, and claims involving drug and alcohol addiction (DAA) cross-referencing SSR 13-2p. As in that SSR and elsewhere, SSR 18-3p cautions that prescribed treatment does not include lifestyle modifications such as dieting, exercise, or smoking cessation. Also the treatment must be prescribed by a treating source, not a consultative examiner or medical expert.
SSR 18-3p goes into effect on October 29, 2018. As with SSRs 18-01p & 18-02p, SSA anticipates that Federal courts reviewing claims on appeal will use the rulings in effect at the time the decision was issued. If the claim is remanded by the court after the effective dates of the new rulings, however, the new ruling will be applied to the entire period in issue.
SSA rescinded SSR 82-53: “Titles II and XVI: Basic Disability Evaluation Guides” effective August 29, 2018. According to SSA, the Ruling was both duplicative and outdated. It provided definitions of “disability” and “blindness” already defined in the Social Security Act and implementing regulations. And it included policy regarding “expired State plans that excluded newly eligible Supplemental Security Income (SSI) recipients… because those plans were rolled over as SSI benefits more than forty years ago”; guidance on the “comparable severity” disability standard for children that was repealed under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996; and the special standard of “engaging in gainful activity” for determining widows’ disability after 1991 that was removed by the Omnibus Budget Reconciliation Act of 1990.
More “Obsolete” SSRs Rescinded
On September 14, 2018, SSA rescinded ten SSRs from the ‘60s to the ‘80s addressing representation guidelines and representatives’ fees that SSA considers “redundant, outdated, or obsolete.” The rescinded SSRs are primarily ones in which SSA adopted federal court opinions as reflecting SSA policy. According to SSA, they “address due process rights to counsel; fees for representational services; and judicial review of representative fees, [and] the information provided therein either reflects well-established legal principles and is already reflected clearly in the Social Security Act or regulations, or has since been clarified in our regulations and subregulatory guidance.”
The SSRs that are no more include: SSR 62-47–Representation of Claimant by Counsel–Fees for Services; SSR 65-33c–Section 206.–Representation of Claimant–Fee for Services–Violation; SSR 66-19c–Sections 205(b) and (g) and 206(a).–Judicial Review–Attorney’s Fee Fixed by Administration; SSR 67-54c–Section 206.–Representation of Claimant–Fixing amount of Attorneys’s [sic] Fees–Administrative and Court Proceedings; SSR 68-47c–Section 206(a).–Representation of Claimant–Attorney’s Fees–Authority to Regulate and Approve Amount; SSR 71-23c–Section 206.–Representation of Claimant–Fair and Impartial Hearing; SSR 72-14c–Section 206(a) (42 U.S.C. 406(a)).–Representation of Claimant–Determination of Attorney’s Fees–Administrative Proceedings; SSR 72-31c–Section 206(a) and (b) (42 U.S.C. 406(a) and (b)).–Representation of Claimant Favorable Award of Benefits to Claimant–Determination of Attorney’s Fee; SSR 82-19c–Sections 205(b), (g), and (h) and 206(a) (42 U.S.C. 405(b), (g), and (h) and 406 (a)) Judicial Review–Attorney’s Fee Fixed by Administration–Constitutionality; SSR 86-10c–Section 206(a) of the Social Security Act (42 U.S.C. 406(a)) Judicial Review–Attorney’s Fee Fixed by Administration–Constitutionality.