Posts Tagged With: Federal Register

Judges Stripped Of Judicial Independnce At SSA

Posted on February 28, 2014 by Judge London Steverson

SSA increases oversight of judges in disability determinations

The Social Security Administration (SSA) recently announced plans to increase its oversight of judges (ALJs) in the disability determination process.
February 25, 2014 /24-7PressRelease/ — In an effort to improve consistency in the disability determination process (SSDI), the Social Security Administration (SSA) recently announced plans to step up its oversight of the administrative law judges (ALJ) who are responsible for awarding or denying disability benefits. The Social Security Disability Insurance program provides financial benefits to people who are unable to work because of a mental or physical disability. 
The program has increased substantially in the years since the U.S. economy took a downturn in 2008, and there are now approximately 11 million people receiving disability benefits nationwide. New job descriptions for judges To expand its oversight of the eligibility determination process, the SSA is rewriting the job descriptions of approximately 1,500 judges, who in the past have been given broad discretion over the outcome of eligibility hearings. In recent years, these eligibility hearings have yielded notoriously unpredictable results.
http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
According to a 2011 report by the Wall Street Journal, an applicant’s likelihood of being awarded disability benefits can vary dramatically depending on the judge; while a handful of judges award benefits in nine cases out of ten, others deny benefits nearly as often.  
The new job descriptions will include language stating that the judges are subject to supervision and will remove the words “complete individual independence,” the WSJ reported. It is hoped that the changes will increase accountability among the judges and allow the SSA to take corrective measures when judges award or deny benefits inappropriately.
 Disability benefit determination 
Before becoming eligible to receive SSDI benefits, an applicant must first establish that he or she meets the SSA’s requirements for being considered “disabled.” To do so, the applicant must demonstrate that each of the following is true: – The individual cannot work because of a medical condition. – The condition has lasted or is expected to last for a year or more, or is expected to result in death.
 While the process of applying for SSDI benefits may seem relatively straightforward, in practice it can be cumbersome, time consuming and often frustrating. Not only is it necessary to submit medical records and other evidence of disability, but in most cases applicants are also required to attend an eligibility hearing before an administrative law judge.
Benefits often available after initial denial
Overall, first-time disability applicants are denied benefits as much as, according to some estimates, but a majority of denied applicants who pursue an appeal are eventually awarded benefits.
http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
 In many cases, working with an experienced Social Security Disability lawyer can significantly improve an applicant’s chances of being awarded benefits, whether it is a first-time application or an appeal.
(Article provided by The Berkley Law Firm Visit us at www.berkleylaw.net — Press release service.)
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How Incorrect Can Politically Correct Be?

Posted on March 19, 2013 by Judge London Steverson
"Mine is a world of incomprehensible shad...

“Mine is a world of incomprehensible shadows”. Severely retarded mentally and physically, she never spoke, was stunted and probably never walked. She was one of a quarter of the world’s children at risk of iodine deficiency, known to be the world’s leading cause of preventable mental retardation. (Photo credit: Wikipedia)

The Social Security Administration (SSA) has proposed changing the terminology it uses in its regulations and its materials. The SSA proposes changing the term “mental retardation” to “intellectual disability.” The Administration has proposed making these changes because it thinks that its current terms can be offensive to some people and that these terms carry negative connotations.

All references to “mental retardation” are being changed

More than two years ago, Congress required that the term “intellectual disability” be used in place of “mental retardation” in all federal health, education and labor policy. This requirement did not apply to the Social Security Administration, however.

In early 2013, the SSA finally moved to follow the lead of Congress. “Advocates for individuals with intellectual disability have asserted that the term ‘mental retardation’ has negative connotations, has become offensive to many people, and often results in misunderstandings about the nature of the disorder and those who have it,” said the SSA in the proposed rule  (NPRM) published in the Federal Register.

The 30-day public comment period on the proposed rule has just passed, and it looks as though the rule will move forward. When it is finalized, all references to “mental retardation” within the SSA’s Listing of Impairments and other rules will be changed to “intellectual disability.”

Also, “mentally retarded children” will be replaced with “children with intellectual disability.”

The language changes are not meant to alter the way SSD claims are evaluated for individuals with developmental disabilities.

Intellectual disability is just one of many mental issues that can entitle you to Social Security Disability benefits. Depression, anxiety, bipolar disorder, schizophrenia, obsessive compulsive disorder and post-traumatic stress disorder are examples of other mental health issues that can lead to a disability finding.

Political correctness, or politically correct (PC) is a term which denotes language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, certain other religions, beliefs or ideologies, disability, and age-related contexts, and, as purported by the term, doing so to an excessive extent.

Widespread use of the term politically correct and its derivatives began when it was adopted as a pejorative term by the political right in the 1990s, in the context of the Culture Wars. Writing in the New York Times in 1990, Richard Bernstein noted “The term ‘politically correct,’ with its suggestion of Stalinist orthodoxy, is spoken more with irony and disapproval than with reverence. But across the country the term p.c., as it is commonly abbreviated, is being heard more and more in debates over what should be taught at the universities.” Bernstein referred to a meeting of the Western Humanities Conference in Berkeley, California, on “‘Political Correctness’ and Cultural Studies,” which examined “what effect the pressure to conform to currently fashionable ideas is having on scholarship”. Bernstein also referred to “p.c.p” for “politically correct people,” a term which did not take root in popular discussion.

Within a few years, this previously obscure term featured regularly in the lexicon of the conservative social and political challenges against curriculum expansion and progressive teaching methods in US high schools and universities. In 1991, addressing a graduating class of the University of Michigan, U.S. President George H. W. Bush spoke against “a movement [that would] declare certain topics ‘off-limits,’ certain expressions ‘off-limits’, even certain gestures ‘off-limits'” in allusion to liberal Political Correctness. The most common usage here is as a pejorative term to refer to excessive deference to particular sensibilities at the expense of other considerations. The converse term “politically incorrect” came into use as an implicit term of self-praise, indicating that the user was not afraid to ignore constraints associated with political correctness.

The central uses of the term relate to particular issues of race, gender, disability, ethnicity, sexual orientation, culture and worldviews, and encompass both the language in which issues are discussed and the viewpoints that are expressed. Proponents of the view that differences in IQ test scores between Blacks and whites are (primarily or largely) genetically determined state that criticism of these views is based on political correctness.

Examples of language commonly referred to as “politically correct” include:

  • “Intellectually disabled” in place of “Mentally Retarded” and other terms
  • “Gay” in place of “homosexual” and other terms
  • “Sexually dysfunctional” in place of “perverted” and other terms
  • “Sex care provider” in place of “prostitute” and other terms
  • “African American” in place of “Black,” “Negro” and other terms
  • “Native American” (United States)/”First Nations” (Canada) in place of “Indian”
  • “Gender-neutral” terms such as “firefighter” in place of “fireman,” police officer in place of policeman.
  • Terms relating to lack of various common human abilities, such as “visually impaired” or “hearing impaired” in place of “blind” or “deaf”
  • “Caucasian culturrally-challenged” in place of “white trash” and other terms
  • “Undocumented alien” in place of “illegal immigrant” and other terms
  • “Economically unprepared” in place of “poor” and other terms
  • “Sanitation engineer” in place of “janitor” or “garbage man” and other terms
  • “Near-life experience” in place of “abortion” and other terms
  • “Youth group” in place of “gang” and other terms
  • “Senior citizen” in place of “old person” and other terms
  • “Holiday”, “winter” or “festive” in place of “Christmas”

In the United Kingdom, “political correctness gone mad” is a catchphrase associated with the conservative Daily Mail newspaper.

In a more general sense, any policy regarded by the speaker as representing an imposed orthodoxy may be criticized as “politically correct.”

Categories: Social Security Benefits | Tags: , , , , , , , , | Leave a comment

A Judge Must Be Fair And Unbiased

Posted on January 30, 2013 by Judge London Steverson

All Social Security Administration (SSA) Admin Law Judges must fulfill their duties with fairness and impartiality. Statements and actions by any Judge that displays unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in the administrative process. All SSA ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting fair and unbiased hearings and issuing decisions for claimants who are dissatisfied with Agency determinations in claims arising under the Social Security Act.Background: Statements and actions by our adjudicators that display unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in our administrative process. Our ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting de novo, informal, non-adversarial hearings and issuing decisions for claimants who are dissatisfied with our determinations in claims arising under the Social Security Act. All adjudicators, including our ALJs, must fulfill their duties with fairness and impartiality. We have three separate processes to guard against unfairness in our hearing process: (1) The Appeals Council review process, under which we review hearing decisions in accordance with 20 CFR 404.969, 404.970, 416.1469 and 416.1470, to ensure that ALJs fairly and impartially consider claims for benefits; (2) the Division of Quality Service’s ALJ complaint investigation process; and (3) the civil rights investigation process for allegations of discrimination involving unfairness, prejudice, partiality, or bias based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint. These three processes operate separately from one another and have different focuses. Claimants, parties, and the public may avail themselves of any or all three of the processes, as applicable, and all three processes may occur concurrently.

 

Social Security Ruling, SSR 13-1p; Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs).

SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of Social Security gives notice of Social Security Ruling, SSR-13-Xp. This Ruling explains the three separate vehicles we have for addressing complaints of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an administrative law judge (ALJ). First, the Ruling describes the procedures that the Office of Disability Adjudication and Review’s (ODAR) Appeals Council follows when it receives such allegations in the context of claim adjudication. Next, the Ruling describes how ODAR’s Division of Quality Service reviews or investigates such complaints outside of the claim adjudication process to determine whether ODAR should take any administrative or disciplinary action with respect to the ALJ. Finally, the Ruling describes how the public may file with us complaints of discrimination based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint against the agency. This Ruling supersedes our prior Notice of Procedures: Social Security Administration Procedures Concerning Allegations of Bias or Misconduct by Administrative Law Judges, 57 FR 49186 (October 30, 1992).

 

Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, special veterans benefits, and black lung benefits programs. SSRs may be based on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.

Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all of our components. 20 CFR 402.35(b)(1).

This SSR will be in effect until we publish a notice in the Federal Register that rescinds it, or publish a new SSR that replaces or modifies it.

Purpose: This Ruling clarifies the three separate processes we have for addressing allegations of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an ALJ.

Citations (Authority): Sections 205(b), 809(a), and 1631(c) of the Social Security Act, as amended; Regulations No. 4, subpart J, sections 404.940, 404.967, 404.969, and 404.970, Regulations No. 5, subpart A, sections 405.25 and 405.30, and Regulations No. 16, subpart P, sections 416.1440, 416.1440, 416.1467, 416.1469, and 416.1470.

 

In this Ruling, we explain these three different processes and emphasize that:

1. The Appeals Council has authority under 20 CFR 404.970 and 416.1470 to act when a party is dissatisfied with a hearing decision or dismissal of a hearing request. Even when a party does not request review, the Appeals Council may initiate review under 20 CFR 404.969 and 416.1469. The Appeals Council considers allegations of unfairness, prejudice, partiality, or bias by ALJs under the standards for review in 20 CFR 404.970 and 416.1470. The Appeals Council may also consider objections from a party stating why a new hearing should be held before another ALJ pursuant to 20 CFR 404.940 and 416.1440. In evaluating such allegations, the Appeals Council considers only the evidence contained in the claimant’s administrative record. The Appeals Council’s process is the only process set forth herein that allows a claimant to obtain a remedy on the claim for benefits.

 

2. The Division of Quality Service may review and, if warranted, investigate any complaints against an ALJ, including allegations of unfairness, prejudice, partiality, bias, or misconduct. Under this process, the Division of Quality Service evaluates allegations to determine whether it is necessary to recommend administrative or disciplinary action against an ALJ.

3. Individuals who allege discrimination based on their race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint, may also file a separate discrimination complaint with us using our civil rights complaint process.

Policy Interpretation

Allegations of Unfairness, Prejudice, Partiality, Bias, or Misconduct Evaluated in the Appeals Council Claims Review Process

The ALJ’s decision is subject to Appeals Council review under 20 CFR 404.970 and 416.1470 if the claimant or other party or his or her representative timely requests review of the ALJ’s decision. The Appeals Council may also review the ALJ’s decision on its own motion under 20 CFR 404.969 and 416.1469.

The Appeals Council will grant a party’s request for review and issue a decision or remand a case when:

* There appears to be an abuse of discretion by the ALJ;

* There is an error of law;

* The action, findings or conclusions of the ALJ are not supported by substantial evidence;

* There is a broad policy or procedural issue that may affect the general public interest; or

* There is new and material evidence submitted that relates to the period on or before the ALJ’s hearing decision, and review of the case shows that the ALJ’s actions, findings or conclusions are contrary to the weight of the evidence currently of record.

 

Under our regulations, an ALJ must not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. A claimant or other party to the hearing who objects to the ALJ who will conduct the hearing must notify the ALJ at his or her earliest opportunity. The ALJ will then decide whether to proceed with the hearing or to withdraw. If the ALJ does not withdraw, the claimant or other party to the hearing may, after the hearing, present objections to the Appeals Council as to reasons why the hearing decision should be revised or a new hearing should be held before another ALJ.

If, in conjunction with a request for review, the Appeals Council receives an allegation of ALJ unfairness, prejudice, partiality, or bias, the Appeals Council will review the claimant’s allegations and hearing decision under the abuse of discretion standard. We will find an abuse of discretion when an ALJ’s action is erroneous and without any rational basis, or is clearly not justified under the particular circumstances of the case, such as where there has been an improper exercise, or a failure to exercise, administrative authority. For example, if the record shows that the ALJ failed to conduct a full and fair hearing by refusing to allow the claimant to testify or cross-examine witnesses, we will find that an abuse of discretion has occurred. An abuse of discretion may also occur where there is a failure to follow procedures required by law.

 

An ALJ also abuses his or her discretion if the evidence in the record shows that the ALJ failed to recuse himself or herself from a case in which he or she was prejudiced or partial with respect to a particular claim or claimant, or had an interest in the matter pending for decision. In this instance, we will remand the case to another ALJ for a new hearing or revise the ALJ’s decision pursuant to 20 CFR 404.940 and 416.1440.

–This is a summary of a Federal Register article originally published on the page number listed below–

Notice of Social Security Ruling (SSR).

Citation: “78 FR 6168”

Document Number: “Docket No. SSA 2012-0071”

Federal Register Page Number: “6168”

“Notices”

Copyright: (c) 2013 Federal Information & News Dispatch, Inc.
Categories: Social Security Benefits | Tags: , , , , , , , , | 2 Comments

Social Security Administration Decides To Obey The Law, This Time

Posted on September 18, 2012 by Judge London Steverson
Seal of the United States Social Security Admi...

Seal of the United States Social Security Administration. It appears on Social Security cards. (Photo credit: Wikipedia)

Social Security Good Deal FILE – This February 2005 file photo shows trays of printed social security checks, in Philadelphia, waiting to be mailed from the U.S. Treasury. People retiring today are part of the first generation of workers who have paid more in Social Security taxes during their careers than they will receive in benefits after they retire. It’s a historic shift that will only get worse for future retirees, according to an analysis by The Associated Press. Previous generations got a much better bargain, mainly because payroll taxes were very low when Social Security was enacted in the 1930s and remained so for decades. (AP Photo/Bradley C. Bower, File) AP

The Social Security Administration (SSA) has decided that it will accept and obey a Circuit Court ruling that will exempt military retired pay from being used to reduce Social Security benefits under a provision of the Social Security Act that would have reduced benefit payments to the retiree. This is good news, because SSA does not always obey the rulings of District and Circuit Courts. Sometimes SSA will intentionally disregard the decisions of Federal Courts and do whatever the policy makers in the Administration think is in their own best interests.

SSA has announced that it will acquiesce in the decision of the U.S. Court of Appeals for the Eighth Circuit in Petersen v. Astrue, 633 F3d 633 (8th Cir. 2011). In that case, the court held that a national guard technician who worked in non-covered employment was exempt from application of the Windfall Elimination Provision (WEP), which would have reduced his retirement benefits. The Acquiescence Ruling, AR 12-X(8), became effective August 27, 2012, and applies only to permanent legal residents in a state that is within the Eighth Circuit, i.e., Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Background

The WEP of Social Security Act (Act) §215(a)(7) reduces the Social Security benefits received by an insured worker who splits his or her career between covered and non-covered employment so that the worker does not receive a benefit “windfall” that would otherwise result if the worker also receives a pension for the non-covered employment. The WEP provision, however, does not apply, per Act §215(a)(7)(A)(III), if the pension is based wholly on service as a member of a uniformed service, including a reserve component. In this case, the claimant worked as a technician in the Air National Guard. He was a federal civilian employee; however, he had “dual status” because he was required as a condition of employment to maintain membership in the reserve. Thus, the appellate court found that the pension he received as a result of that work was exempt from the WEP, even though the work was in non-covered employment, because of his membership in a uniformed service. The statute providing for the exemption only requires membership in the uniformed service. It does not require that the service be only in a non-civilian or military duty capacity. Accordingly, the court found that the Social Security benefit received by the retired technician was not subject to reduction by the WEP.

The agency’s position

The SSA interprets the uniformed services exception to the WEP to mean that only monthly payments based on military service are exempt. Under this interpretation, monthly payments that are based on non-covered civilian public employment, including that of National Guard technicians who work under the Civil Service Retirement System (CSRS), are not exempt from the WEP. Moreover, the effect of the uniformed services exception and the regulatory provision found at 20 CFR 404.213(e)(9) is to exempt from the WEP only military retirement pay based on reserve inactive duty training (IDT). Other kinds of military duty, such as active duty, already were not subject to the WEP because they have been considered covered employment since 1956.

The legislative history of the uniformed services exception explains that the purpose was to exempt military retired pay, based on noncovered IDT military duty, from application of the WEP. The exception was not intended to exempt any pension based on civilian work. The Eighth Circuit declined to consider the legislative history of the uniformed services exception because the court found there was no ambiguity to it.

AR will apply at all decision-making levels

The acquiescence ruling will apply to Social Security old-age or disability applicants and beneficiaries who receive a CSRS pension based on noncovered work as dual status National Guard technicians, and who are permanent legal residents of a state within the Eighth Circuit. Like all acquiescence rulings, AR 12-X(8) will apply at all levels of administrative review. The full text of the acquiescence ruling was published in the August 27, 2012, Federal Register (77 Fed. Reg. 51842).

Categories: Social Security Benefits | Tags: , , , , , , , , | 2 Comments

How Five Steps Became Four In The Disability Determination Process.

Posted on August 21, 2012 by Judge London Steverson
English: Baton Rouge, LA, 9/3/05 -- Victims of...

English: Baton Rouge, LA, 9/3/05 — Victims of Hurricane Katrina wait outside the Social Security Administration building in hopes of getting assistance. New Orleans is being evacuated because of flooding caused by hurricane Katrina. Photo by: Liz Roll (Photo credit: Wikipedia)

Social Security Administration has finalized the expedited sequential evaluation process, making Step 4 optional for the ALJ.

The Social Security Administration has finalized its rules to expedite the five-step process for evaluating a disability claim by giving adjudicators the discretion to skip step 4 and proceed directly to the fifth step when the Administration has insufficient information about a claimant’s prior work history to make the findings required at step 4. However, if an adjudicator finds at step 5 that a claimant may not be able to adjust to other work existing in the national economy, the adjudicator will then return to step 4 to develop the work history and make a finding about whether the claimant can perform his or her past relevant work. According to the Administration, the purpose of these changes is to promote administrative efficiency since the time the Administration spends in obtaining the work history needed to make step 4 findings frequently delays the processing of claims and requires the Administration to divert its limited administrative resources from processing other claims.

Background

At step 4 of the sequential evaluation process, the Administration determines whether a claimant can perform his or her past relevant work given his or her residual functional capacity (RFC). The Administration will look at the past fifteen years of a claimant’s work history for relevant information. To make a proper evaluation, the Administration needs information about each of the claimant’s jobs during that period, including information about job duties, tools or machinery used, the amount of physical exertion required in terms of the amount of walking, standing, lifting, and carrying during the workday, the length of time that a claimant worked each job, and the physical and mental demands of the job. With this information the Administration compares the claimant’s RFC to the physical and mental demands of these past relevant jobs to determine if the claimant can still perform any of them. If so, the claimant is found to be not disabled. However, if the claimant is currently unable to perform any past relevant work, the adjudicator will proceed to step 5.

At step 5 the adjudicator determines whether a claimant’s impairments prevents him or her from doing any other work that exists in significant numbers in the national economy, considering his or her RFC and vocational factors such as age, education, and work experience. If the Administration finds that the claimant can adjust to other work, the claimant is found to be not disabled.

Why are changes being made?

Because it can be time-consuming to gather all of the necessary information regarding the claimant’s work history during the fifteen-year period that precedes the alleged disability onset date, disability determinations are often delayed. By going directly to step 5, a determination can be expedited if it is determined that a claimant is not disabled under the criteria for step 5. At step 5 the adjudicator would consider if the claimant is disabled based on (1) The special medical-vocational profiles set forth at Reg. §404.1562; (2) the Medical-Vocational Guidelines (Appendix 2 to 20 CFR, Part 404, Subpart P), whether directly or as a framework, or (3) an inability to meet the mental demands of unskilled work. If application of the step 5 rules indicates that a claimant may be disabled or if the adjudicator has any doubt whether the claimant can perform other work existing in significant numbers in the economy, the adjudicator must return to step 4 since the Social Security Act requires the Administration to make a finding about a claimant’s ability to do past relevant work before a determination is made that a claimant is disabled at step 5. The expedited process is reflected primarily in Regs. §404.1520 and §416.920.

The Administration believes that this approach to evaluation could shorten some process times in some cases because there would be no need to collect unnecessary work history at step 4 for claims that can be appropriately denied at step 5 based solely on the claimant’s age, education, and RFC. This process has already been used for the past 12 years in ten “prototype” states. (These states are Alabama, Alaska, California (Los Angeles North and Los Angles West Branches), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania.) This expedited process will be used in all disability evaluations except for childhood disability claims under Title XVI, since those claims do not use vocational criteria.

Comments result in some minor changes

The regulations, as proposed on September 11, 2011, are adopted with a few minor changes.

The Administration agreed with a comment that adjudicators who do not make findings at step 4 of the sequential evaluation process using the expedited process must consider the potential application of the “special medical-vocational profiles” before proceeding to step 5. Those profiles are sent forth at Reg. §404.1562, SSR 82-63, and POMS DI §25010.001. If a claimant fits one of these profiles, a finding of disability will be made. The profiles include (a) persons not working at substantial gainful activity level who have worked for 35 years or more in arduous physical labor, can no longer perform this work due to an impediment, and have no more than a marginal education; (b) individuals 55 or older who have a severe impairment, no past relevant work, and have no more than a limited education; and (c) persons who are not working at SGA level, and have a lifetime commitment (30 years or more) to a field of work that is unskilled, or is skilled or semi-skilled but with no transferable skills, can no longer perform this past work because of a severe impairment(s), are closely approaching retirement age (age 60 or older), and have no more than a limited education. Accordingly, references to Reg. §404.1562 will be included in some of the regulations being amended, and a similar reminder will be inserted into an electronic tool used at the initial stages of the administrative review process.

The full text of the Administration’s announcement was published in the July 25, 2012, issue of the Federal Register (77 Fed. Reg. 43492).

Categories: Social Security Benefits | Tags: , , , , , , , , , | Leave a comment

Joint Pains That May Pay Dividends.

Posted on August 21, 2012 by Judge London Steverson
Fibromyalgia Awareness

Fibromyalgia Awareness (Photo credit: Kindreds Page)

Not all joint pains can be cured with a miracle healing. If you have joint pains that will not go away, and no miracle healing has been able to cure, then you might be permanently disabled.

It is no secret that most people are likely to have “good days” and “bad days.”If your condition consists mostly of joint pains, there may be days when you feel that you can work. Your pain may fluctuate and may not always be present. You may be suffering from fibromyalgia.  Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues. If your pain or other symptoms cause a limitation or restriction that has more than a minimal effect on your ability to perform basic work activities, you could qualify for disability benefits from the Social Security Administration.

 

The Social Security Administration has issued a comprehensive statement that provides guidance on how disability claims based on fibromyalgia should be evaluated. It is contained in Social Security Ruling (SSR) 12-2p.

Rulings are published under the authority of the Commissioner of Social Security and make available to the public a series of precedential decisions relating to Federal old-age, survivors, disability, supplemental security income (SSI), and black lung benefits programs. Social Security Rulings (SSR) may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, and other policy interpretations of the law and regulations. Rulings do not have the force and effect of the law or regulations, but they are binding on all components of the Social Security Administration (SSA), and are to be relied upon as precedents in adjudicating other cases.

 

Social Security Ruling (SSR) 12-2p, provides guidance on how the Administration will develop evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia, and how it will evaluate this condition in disability claims and in continuing disability reviews under both Titles II (SSDC) and XVI (SSI) of the Social Security Act. The ruling, which was effective upon publication, appears in the July 25, 2012, issue of the Federal Register (77 Fed. Reg. 43640).

The new ruling relies on two alternative sets of guidelines for establishing the presence of fibromyalgia, the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. Additionally, particular emphasis is given to longitudinal evidence and a recognition that one suffering from the condition is likely to have “good days” and “bad days.” This clearly increases the role played by a treating physician in establishing the presence of fibromyalgia. The detailed guidance provided by SSR 12-2p should also restrain adjudicators who might be predisposed to deny claims based on fibromyalgia when it is otherwise clearly established in accordance with the Ruling.

How fibromyalgia is to be established

Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least three months. Generally, an MDI of fibromyalgia can be established through evidence provided by “an acceptable medical source,” i.e., a physician or osteopath. However, the Administration will not rely on a diagnosis without evidence. The evidence must document that the physician reviewed the person’s medical history and conducted a physical examination.

Based on both the 1990 ACR criteria and the 2010 ACR Preliminary Diagnostic Criteria, there are three components to the specific criteria that must be used to determine that a claimant has an MDI of fibromayalgia. Both sets of criteria agree on two of the points, but have different guidelines regarding current symptomatology (point 2, below):

(1) A history of widespread pain. This means pain in all quadrants of the body that has persisted for at least three months, although the pain may fluctuate and may not always be present.

(2) 1990 ACR criteria: At least 11 positive tender points out of a possible 18 tender point sites on physical examination. These points must be both bilateral and above and below the waste. The specific location of these tender point sites are identified with a diagram in the notice. When testing these tender-point sites, the physician should apply at least 9 pounds of pressure to the site; or,

2010 ACR Preliminary Diagnostic Criteria: Repeated manifestations of six or more fibromyalgia symptoms, signs or co-occuring conditions, especially manifestations of fatigue, cognitive or memory problems, waking unrefreshed, depression anxiety disorder, or irritable bowel syndrome. A complete list of symptoms appears in the notice.

(3) Evidence that other disorders that could cause the symptoms or signs have been ruled out.

The Administration will generally request documentation for the 12-month period that precedes the application date. Evidence may also be considered from medical sources who are not “acceptable medical sources” such as psychologists, as well as from nonmedical sources such as neighbors, friends, employers, rehab counselors, teachers, and Administration personnel who have interviewed the claimant. If the evidence is insufficient, the Administration may purchase a consultative examination; however, the Ruling notes that the consultative examiner should have access to longitudinal information about the claimant. However, it is not a necessary requirement.

Once an MDI is established, the Administration will then evaluate the intensity and persistence of the person’s pain or any other symptoms and determine the extent to which the symptoms limit the person’s capacity for work. If objective medical evidence does not substantiate the person’s statements about the intensity, persistence, and functionally limiting effects of symptoms, all of the evidence in the case record will be considered, including the person’s daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person’s attempts to obtain medical treatment for symptoms; and statements by other people about the person’s symptoms.

Determination of disability after fibromyalgia is established

Once an MDI of fibromyalgia is established, it will then be considered in the five-step sequential evaluation process. At step two, when determining severity, the ruling states, “If the person’s pain or other symptoms cause a limitation or restriction that has more than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).” Because fibromyalgia is not a listed impairment, the Administration at step three, will determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.

When determining the residual functional capacity for an individual basing a claim on fibromyalgia, all relevant evidence in the record will be considered. However, the Administration specially notes that it will “consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have ‘bad days and good days.’” At steps four and five, the usual vocational considerations apply. However, the Administration states that “[w]idespread pain and other symptoms associated with FM, such as fatigue, may result in exertional limitations that prevent a person from doing the full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2). … Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person’s occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision.”

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