In a flurry of activity as Acting Commissioner Colvin’s term comes to an end, the Social Security Administration (SSA) has proposed a series of new regulations in the Federal Register, including ones that would make significant changes to the evaluation of treating physician/source opinions. Revisions to Rules regarding the Evaluation of Medical Evidence. 81 Fed. Reg. 62559 (Sept. 9, 2016) available here.
These proposed regulations would redefine several key terms related to evidence and revise the list of acceptable medical sources. They would change how medical opinions and prior administrative medical findings are considered, who can be a medical consultant and psychological consultant, and the rules related to treating sources. The proposed rules would also reorganize the evidence regulations. According to SSA, the main goal of these proposed revisions is to “simplify the evidence rules to make them easier to understand, use and apply.”
The preamble to the proposed regulations details the proposed changes, which would affect many existing regulations and Social Security Rulings (SSRs). Significant changes include “Redefining and Categorizing Terms Related to Evidence.” Proposed categories of evidence would be 1) objective medical evidence, 2) medical opinions, 3) other medical evidence, 4) statements from nonmedical sources, and 5) prior administrative findings. Objective medical evidence would include signs or laboratory findings, not necessarily both.
Of note, symptoms, diagnoses, and prognoses would not be considered opinion evidence, but moved to the category of “other medical evidence.” Administrative findings of fact and medical opinions from state agency medical and psychological consultants would be considered “prior administrative medical findings.” These findings would be considered under the same factors used to consider other medical opinions. The proposed regulations would also rescind the provisions of Social Security Ruling (SSR) 06-3p related to decisions by other agencies. SSA would no longer have to consider or articulate reasons why its decision differs from other governmental or nongovernmental agencies.
Under the category of “Establishing the Existence of a Medical Impairment,” SSA would “clarify” that a medically determinable impairment (MDI) cannot be established by symptoms, diagnoses, or medical opinions. An MDI would only be established by objective medical evidence from an acceptable medical source (AMS). According to SSA, a diagnosis is not always reliable “because sometimes medical sources diagnose individuals without using objective medical evidence.” An open invitation for second–guessing here?
SSA proposes to expand the list of “Acceptable Medical Sources.” Added to the current list would be audiologists and Advanced Practice Registered Nurses (APRN). SSA believes the inclusion of APRNs reflects the modern primary care healthcare delivery system. But SSA is interested in receiving public comments on whether others, including physician assistants (PA) and licensed clinical social workers, should be added to the list. Of concern is whether their licensing, education, and training requirements are sufficient and consistent across the States.
As noted elsewhere in this newsletter, the Bipartisan Budget Act (BBA) requires that medical consultants who review claims must be licensed physicians or psychologists. Under “Revisions to Our List of Medical Sources Who Can be MCs and PCs,” SSA proposes to amend its rules to conform to the statute.
Major changes are proposed in the category of “Consideration and Articulation of Medical Opinions and Prior Administrative Medical Findings.” Relying heavily on the 2013 findings of the Administrative Conference of the United States (ACUS), SSA cites the burdensome number of findings required by adjudicators under the current rules, conflicting federal court perspectives, and the changing nature of the primary healthcare system as the bases for the proposed radical changes. According to the Preamble, changes in how people receive primary care have undermined the presumptive that a claimant’s sole treating physician has the longitudinal knowledge and unique perspective that objective medical evidence alone cannot provide. For example, claimants are more likely to be treated by teams of health care providers.
In response to these changes, SSA would no longer give a specific weight (i.e., controlling weight) to any medical opinions, including from the claimant’s own healthcare provider. Instead, SSA will consider the “persuasiveness” of opinions and prior administrative findings using several factors. The factors, in order of importance, would be: 1) supportability, 2) consistency, 3) relationship with the claimant, combining the current examining and treatment factors, 4) specialization, 5) familiarity with the entire record, 6) understanding of SSA policy, and 7) other factors. SSA would “consider” rather than “weigh” these factors.
How the factors are “considered” would be “articulated” by the adjudicator, although adjudicators would be relieved of articulating how any number of medical opinions were considered, including non-AMS sources. Adjudicators will have discretion as whether they even have to discuss such opinions. Further, adjudicators will be required to explain how the additional factors beyond supportability and consistency were considered only if presented with two or more conflicting AMS medical opinions or prior
administrative findings that are equally well-supported and consistent with other evidence of record.
Even the term “treating source” would disappear. SSA proposes aligning its rules “more on the content of medical evidence than the source of that evidence.” The rules would be revised to use the phrase “your medical source(s).” But SSA would emphasize that the preferred choice for consultative examiners would be claimants’ medical sources.
As noted above, many regulations would be revised by these proposed changes. Additionally, SSRs 96 -2p, 96-5p, 96-6p, and 06-3p would be rescinded. But SSA would publish a new SSR outlining how ALJs and the Appeals Council would obtain evidence to make medical equivalency findings.
The Empire Justice Center will be submitting comments, which are due November 8th. We welcome your feedback and comments on these important proposed changes.