Posts Tagged With: socialNecurity

The Treating Physician Rule Is Controlling

                                                             

7th Circuit: Omission of fibromyalgia diagnosis reversible error

 

Treating Physician Rule

The opinion of the treating physician is entitled to controlling weight. It will decide whether you get paid, if it cannot be discredited. If you do not have your own doctor, then the consultative examiner’s (CE) opinion will control. However, a treating physician’s  opinion is accorded controlling weight only if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).

Evidence from a treating physician is not the only medical evidence that a claimant may present. Non-medical evidence, such as testimony or reports from chiropractors and physical therapists, is also admissible. Medical-related evidence, such as the testimony of personal friends, concerning what they have observed is also probative and admissible. The ALJ must consider all such evidence. The ALJ is charged with the duty to weigh all of the evidence in the record to reach a fair decision.

On occasion, the ALJ may find the evidence of a non-treating source more persuasive than that of the Treating Physician. The opinion of a treating physician “must be given substantial or considerable weight unless `good cause’ is shown to the contrary.” Good cause is shown when the:

“(1) treating physician’s opinion was not bolstered by the evidence;

(2) evidence supported a contrary finding; or

(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”

If the ALJ can give specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence in the record, then there will be no reversible error.

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

 

      Nancy J. Thomas v. Carolyn W. Colvin, Acting Commissioner of Social Security

The 7th Circuit Court of Appeals ruled that a Social Security Administration (SSA) Administrative Law Judge (ALJ) in the Office of Disability  Adjudication And Review (ODAR) committed reversal error when he omitted fibromyalgia from a woman’s list of impairments. This omission was not supported by the evidence. The Federal Circuit Court reversed denial of her application for supplemental security income (SSI).

Nancy Thomas , the claimant, was diagnosed with Graves’ disease in 2006, an autoimmune disease affecting the thyroid gland. Over the next four years she complained of headaches, shortness of breath, fatigue, pain in her neck, depression, intolerance to heat and cold, and other symptoms. She saw two doctors before filing for SSI, where she saw a state medical examiner (ME). The Social Security Administration denied her application for SSI in 2011. It took six years for her to get her benefits.

She went back to one of her treating doctors, who diagnosed her with fibromyalgia and prescribed Lyrica to help. Another doctor completed a disability questionnaire which stated she had been diagnosed with Graves’ disease and moderate fibromyalgia causing muscle and joint pains and these conditions “substantially limit” Thomas’ ability to engage in substantial gainful activity (SGA).

Thomas appeared before an ALJ a year and half after her initial denial of SSI and he denied her claim. The ALJ admitted Thomas suffered from Graves’ disease, degenerative changes of the left shoulder and lumbar spine, and dysthymic disorder, but did not acknowledge fibromyalgia because neither of her treating physicians (TA) who had diagnosed her and and who supported her was a rheumatologist. The SSA ALJ also thought Thomas’ symptoms were not severe enough and at most caused minimal limitations to Thomas’ ability to work. The District Court upheld the verdict.

(THE ONLY PERSON WHO DOES NOT GET SSI IS THE PERSON WHO DOES NOT APPEAL)

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

Thomas appealed, claiming the ALJ’s omission of her fibromyalgia diagnosis were unsound and the conclusion about the severity of her physical impairments is not back up by evidence.

In a per curiam decision heard by Chief Judge Diane Wood and Judges William Bauer and Michael Kanne, the 7th Circuit Federal Court ruled the ALJ overlooked a second set of criteria when deciding whether Thomas had fibromyalgia, which includes a history of widespread pain and repeated occurrence of symptoms. Thomas supplied this evidence, refuting the SSA’s claim that overlooking this set of criteria was harmless error.

The 7th Circuit also agreed with Thomas that the ALJ’s claims about the severity of her symptoms were not backed up by sufficient evidence. It ruled the ALJ put too much weight on the testimony of the government’s two doctors who examined Thomas and not enough on Thomas’ Treating Physicians and her testimony.

(IF YOUR TREATING PHYSICIAN SAYS THAT YOU ARE DISABLED, THE SSA MUST PAY YOU BENEFITS. THAT IS THE RULE!)

“In finding Thomas not credible to the extent that she described more than minimal limitations, the ALJ relied on the seeming lack of objective evidence supporting Thomas’s subjective account of her symptoms, but, as discussed earlier, the ALJ skipped over the substantial findings of Thomas’s treating physicians and physical therapist that showed that her impairments indeed would limit her ability to perform Substantial Gainful Activity SGA,” the panel wrote in remanding the case for further proceedings.

The case is Nancy J. Thomas v. Carolyn W. Colvin, Acting Commissioner of Social Security,  15-2390. (By Scott Roberts, June 23, 2016.)

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Categories: Social Security Cases | Tags: , , , | 1 Comment

How To Win Your Social Security Disability Claim? Simple, Find The Right Judge.

Disability Claim Denied? Find the Right Judge

Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.

To all parties involved in a trial, the slam of a gavel should indicate that justice has been served. Unfortunately, this is often not the case with Social Security Disability (SSDI and SSI) appeals. A system designed to serve society’s vulnerable has morphed into a benefit bonanza that costs taxpayers billions of dollars more than it should. The disability trust fund will become insolvent in 2016, and Congress would be wise to begin much needed reform.

A disability applicant whose claim is rejected during the Social Security Administration’s (SSA) first two stages ( before State Disability Determination Services)  can appeal the decision to administrative-law judges (ALJ). These judges must impartially balance the claims of the applicant against the interests of taxpayers.

Over the past decade judicial impartiality has declined significantly, as many administrative-law judges uncritically approve most claims. In 2008 judges on average approved about 70% of claims before them, according to the Social Security Administration. Nine percent of judges approved more than 90% of benefit requests that landed on their desks.

Do nine out of every 10 applicants appealing denied claims need societal support? There are reasons for skepticism. The data show that judges who are generous in granting benefits are consistently generous over time—which is suspicious, since each year they should hear a random set of new cases. The more discerning judges—those who award benefits less than 90% of the time—are more unpredictable from year to year.

(Photo: Getty Images/Illustration Works)

If the judges with award rates topping 90% are removed from the data, the rate of denial increases by 2%-3% annually. That amounts to 98,000 claims from 2005-11. Assuming an average lifetime award of $250,000, taxpayers would have saved $23 billion over those six years had the worst judges left the bench. If we lower the threshold to exclude judges with award rates north of 85%, these savings increase to $41 billion.

Former Social Security Commissioner Michael Astrue, who took office in 2007, made much-needed changes. Incompetent incumbents saw their influence diluted by new judges drawn from fresh candidate lists. Judicial decisions are now randomly reviewed to ensure that the court remains impartial and fair to taxpayers. Judges were limited to hearing 1,000 cases a year (the figure has since been lowered to 700), and individuals are allowed only one disability application at a time.

Mr. Astrue’s reforms have produced good results. In 2011 judges with award rates exceeding 90% heard a mere 4% of all cases, a 63.6% decline from 2008. But Mr. Astrue’s term expired in 2013, and these changes can easily be undone, either intentionally by future administrators, or unintentionally as bad habits slip back into the system.

His program to increase accountability and judicial turnover should be made permanent. Congress should also institute 15-year term limits for judges, who currently enjoy lifetime tenure, to ensure that fresh legal minds are joining the stale judicial aristocracy. A term of a decade and a half is long enough to insulate judges and prevent undue political influence.

The system faces a huge backlog, made worse by claimants who play adjudication roulette, filing and then withdrawing appeals in hopes of drawing a generous judge. Congress can limit this gamesmanship by allowing only one application per claimant in a three-year period. Because judges must marshal more documentation for a denial than an approval, they have an incentive to grant benefits to keep the system chugging along. The agency can fix this by further limiting the number of cases each judge must decide to 500 from 700.

The system is further complicated because even if a claimant has legal counsel, the judge must advocate on the claimant’s behalf. This dual role should be ended. Most claimants—85%—now have third-party representation. These professionals should be held responsible for getting supporting materials into court expeditiously and completely so the record can be closed in a timely manner.

Even under better legal rules, judges will still face rigid and outdated guidelines for granting benefits. The framework they must follow—known as the Medical Vocational Grid (known as The Listings)—is formulaic to the point of senselessness. For instance, the bar to benefits approval is lower for someone who doesn’t speak English, on the theory that it is difficult to find a job without the language. But that English rule is also applied to claimants from Puerto Rico, where the language of business is Spanish.

These guidelines (in The Listings) also do not give due consideration to actual labor market experience, dictating a looser approval standard for someone with only a high-school degree, even if the person has succeeded in the labor force for decades.

The framework (of The Listings) was developed in the late 1950s, for the previous generation’s workforce, and hasn’t been updated since 1978. Decades ago workers ages 50 or 55 might have been considered retiring, but this is no longer generally the case. Novel job-training programs also make it easier than ever for workers to move into new fields and make up for low levels of education, and new disability criteria would account for these changes.

These solutions would begin to deliver meaningful reform to Social Security disability awards. They can restore dignity and efficacy to a troubled system.

(BY Mark J. Warshawsky And Ross A. Marchand, March 8, 2015) 

(Mr. Warshawsky is a visiting scholar at the Mercatus Center of George Mason University and a former member of the Social Security Advisory Board from 2006 to 2012. Mr. Marchand is a first-year economics graduate student at George Mason University.)

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Acting Social Security Commissioner Fails To Get Senate Confirmation Due To Possible Criminal Investigation

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of the  Social Security Administration (SSA).  Prior to this designation, she served as a Deputy Commissioner at SSA.  Several high-level members of her inner circle of advisers are at the center of an  investigation concerning  a dysfunctional, $300 million computer system. An Inspector General’s (IG) Report has raised the possibility of a criminal investigation.

The Senate canceled vote on President Obama’s pick for Social Security Commissioner. Obama pick to head Social Security runs into more trouble; Senate cancels confirmation vote.

(AP)(14 Dec. 2014) — President Barack Obama’s pick to head the Social Security Administration has run into more trouble after Senate Democrats canceled a procedural vote on her nomination.

All 11 Republicans on the Senate Finance Committee signed a letter to Colvin on Wednesday, December 10th, noting that new information had come to light about a dysfunctional, $300 million computer system intended to speed the processing of disability claims. An interim inspector general (IG) report has raised questions about whether agency employees misled Congress about the extent of the problem, the lawmakers said.

“We cannot in good faith allow a nomination for any position that requires the advice and consent of the Senate to proceed to a vote as long as the specter of a potential criminal investigation surrounds the nominee and/or those in their inner circle,” read the letter from Utah Sen. Orrin Hatch, the top Republican on the committee, and its other GOP members.

“Agency representatives previously briefed members of the Senate and House regarding the issues raised in the Senate Republican Finance members’ letter,” the spokeswoman, LaVenia LaVelle, said in the statement. “The acting commissioner will respond timely and fully to the members requests, and continue to cooperate with Congress and any related investigation.”

Aides have long noted that the troubled computer system, which was intended to speed the processing of disability claims, was implemented under Colvin’s predecessor, Michael J. Astrue. And they have said that Colvin began a thorough investigation of the matter when she took over the agency last year.Still, the opposition from Republicans in the waning days of the lame-duck session of Congress threw Colvin’s confirmation into question. The current Congress is set to adjourn as soon as next week — and the Senate calendar will become increasingly full between now and then.

While senators have sped through several confirmations since the midterm elections, they have dealt mainly with non-controversial appointments. Colvin’s term, if she is confirmed, would last for six years, well into the next presidential administration.

And when the new Congress gavels in next month, the Senate will be controlled by Republicans, giving concerns raised by Republicans on the Senate Finance Committee added weight.Neither of Maryland’s Democratic senators, Barbara A. Mikulski and Ben Cardin, have responded to request for comment. Cardin is a member of the Finance Committee, which oversees Social Security.

The agency came under scrutiny this year amid revelations that it spent nearly $300 million and six years developing the computer system for disability claims, and it still does not work. The problems were known during Colvin’s confirmation hearing, and while Hatch mentioned them at the time he did not ask Colvin about them.

In their letter, the senators pointed to a news release from a House subcommittee last month regarding an interim IG Report that raised the possibility of a criminal investigation. The letter said the senators have sought to better understand the nature of that investigation but have been unable to do so because the probe is continuing.

“We have received information from whistleblowers that the ongoing investigation has centered around the activities of certain members of your immediate office, including several high-level agency officials, the senators wrote. “Therefore, it is essential to address your role with respect to this inquiry before each of us can make an informed decision on how to vote for your nomination once it reaches the full Senate for consideration.”

Obama nominated Carolyn W. Colvin to a six-year term as commissioner in June, and Colvin’s nomination cleared one procedural hurdle in the Senate Saturday, Dec. 13. However, Senate Majority Leader Harry Reid, D-Nev., canceled an upcoming vote, making it likely Colvin won’t get a vote until next year, when Republicans take control of the Senate.

Colvin’s nomination would have taken up valuable floor time as the Senate rushes to finish its year-end business. Senators could speed the process but that would require a bipartisan agreement.

Colvin’s nomination first ran into trouble when a group of Republican senators said they would try to block it while investigators look into a $300 million computer project at the agency.

The project, which doesn’t work, predates Colvin’s tenure — she has been acting commissioner since Feb. 2013. But an inspector general’s investigation is ongoing.

“I don’t know how the Senate can, with good conscience, vote to confirm anyone with this type of ongoing investigation going on around their immediate office,” Sen. Orrin Hatch, R-Utah, said in a floor speech. “It may very well turn out that Ms. Colvin did nothing wrong, but we need to know for sure.”

Colvin defended her integrity and her long career in government in a recent interview with The Associated Press.

“I’ve worked in government my entire life. There’s never been a suggestion, personal or professional, of any wrongdoing,” Colvin said in the interview, which had been scheduled before the controversy erupted.

“I’m certainly not ending my career with that,” Colvin continued. “I came out of retirement to help this organization, not hurt it.”

Six years ago, Social Security embarked on an aggressive plan to replace outdated computer systems overwhelmed by a flood of disability claims. But the project has been racked by delays and mismanagement, according to an assessment commissioned by the agency over the summer.

The new computer system is supposed to help workers process and manage disability claims. But the project is still in the testing phase and the agency can’t say if it will ever be operational or how much it will cost.

Colvin, 72, first worked as a deputy commissioner at Social Security in the 1990s. She left the agency in 2001 to become director of human services for the District of Columbia. She later had a similar job in Montgomery County, Maryland.

Colvin returned to Social Security in 2010 as deputy commissioner.

Associated Press

Throughout her career, Ms. Colvin has managed programs that help people with their healthcare and financial needs.  She previously held key executive positions at Social Security Headquarters: Deputy Commissioner for Policy and External Affairs (1994–1996), Deputy Commissioner for Programs and Policy (1996–1998), and Deputy Commissioner for Operations (1998–2001).

Prior to returning to SSA, Ms. Colvin was the Director of Human Services for the District of Columbia (2001-2003); the Director of the Montgomery County Department of Health and Human Services (2003-2007); the Chief Executive Officer of AMERIGROUP Community Care of the District of Columbia (2007–2008); and, the Special Assistant to the Secretary of Maryland’s Department of Transportation (2009-2011).  In addition, Ms. Colvin served as the Secretary of Maryland’s Department of Human Resources (1989-1994).

Ms. Colvin has received numerous awards and recognition for her managerial expertise and creativity, including Maryland’s Top 100 Women Award from the Daily Record (2005) and the Women of Achievement Award from Suburban Maryland Business and Professional Women (2005).  She has served on a variety of boards and commissions, including the National Committee to Preserve Social Security and Medicare.

Ms. Colvin earned her graduate and undergraduate degrees in business administration from Morgan State University.  Additionally, she completed the Senior Executives in State and Local Government Program at Harvard University, the Maryland Leadership Program, and the Greater Baltimore Leadership Program. Ms. Colvin is from Maryland and currently resides in Anne Arundel County.  She has one son and six grandchildren.

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2013 in review for Judge London Steverson’s Word Press Web Site

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 6,300 times in 2013. If it were a NYC subway train, it would take about 5 trips to carry that many people.

Click here to see the complete report.

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