Posts Tagged With: treating Physician Rule

Social Security Administration Moves To Abolish Treating Physician’s Rule. Backlog Of Hearing Requests Sure To Worsen.

New Rule May Worsen Backlog For Social Security Disability Claimants

By the time Stephenie Hashmi of Lenexa, Kansas, was in her mid-20s, she had achieved a lifelong dream: She was the charge nurse at one of Kansas City’s largest intensive care units. But even as she cared for patients, she realized something was off with her own health.

“I remember just feeling tired and feeling sick and hurting, and not knowing why my joints and body was hurting,” Hashmi says.

Hashmi was diagnosed with systemic lupus, a disease in which the body’s immune system attacks its own tissues and organs.

She’s had surgeries and treatments, but now, at age 41, Hashmi is often bedridden. She finally had to leave her job about 6 years ago, but when she applied for Social Security disability benefits, she was denied.

                                                                                            

“I just started bawling. Because I felt like, if they looked at my records or read these notes, surely they would understand my situation,” Hashmi says.

Lisa Ekman, director of government affairs for the National Organization of Social Security Claimants Representatives, says Hashmi’s struggle with the application process is not unusual.

“It is not easy to get disability benefits. It’s a very complicated and difficult process,” Ekman says.

Right now, just about 45 percent of people who apply for Social Security disability benefits are accepted, and getting a hearing takes an average of nearly 600 days.

The Kansas City office’s average hearing time is closer to 500 days, but its approval rate is slight lower at 40 percent.

The Backlog started snowballing about 10 years ago, around the time Jason Fichtner became acting Deputy Commissioner of the Social Security Administration (SSA).

He says that during the Great Recession, a lot of people who had disabilities applied but weren’t necessarily unable to work.

“But they’re on the margin,” Fichtner says. “They can work, but when the recession happens, those are the first people who tend to lose their jobs, and then they apply for disability insurance.”

There are now more than a million people across the country waiting for hearings. Adding to the strain, the Social Security Administration’s core operating budget has shrunk by 10 percent since 2010.

This spring, the SSA introduced changes to fight fraud and streamline the application process, including a new fraud-fighting measure that removes the special consideration given to a person’s long-time doctor.  (This is known as The Treating Physician’s Rule)

Lisa Ekman says this is a mistake.

“Those changes would now put the evidence from a treating physician on the same weight as evidence from a medical consultant employed to do a one-time brief examination or a medical consultant they had do a review of the paper file and may have never examined the individual,” Ekman says.

She says this could lead to more denials for disabled people with complex conditions like lupus, multiple sclerosis or schizophrenia. These illnesses can affect patients in very different ways and may be hard for an outside doctor or nurse to assess.

She says more denials will lead to more appeals, which will only increase the backlog.

She is correct. The Treating Physician’s Opinion is controlling.

https://judgelondonsteverson.me/2016/06/24/the-treating-physician-rule-is-controlling/

But former administrator Fichtner, now a senior research fellow at George Mason University’s Mercatus Center, says the SSA is obligated to weed out any fraud it can, including the admittedly rare cases of treating physicians tipping the scale in favor of their patients.

He says the SSA can still prioritize applicants.

“For patients that are really in dire condition and really have major disabilities, I don’t think they have to worry about this rule change,” Fichtner says.

He acknowledges, however, that the backlog needs attention and says the agency has safeguards to monitor whether the rule is working.

Back in her kitchen in Lenexa, Stephenie Hashmi’s husband Shawn prepares a family dinner she won’t be able to eat because she’s having problems with her esophagus.

Stephenie puts on a brave smile, but the progression of her illness and the ordeal with Social Security have made her increasingly pessimistic.

After several rejections, she’s now on her final appeal. Her hearing is scheduled for November – of   2018.

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

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.)

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

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