By: Arshi Pal, Esq., Littman Krooks LLP

On January 18, 2017, the Social Security Administration (“SSA”) revised their Regulations with regard to the evidentiary standard Administrative Law Judges (“ALJ”) use to determine eligibility for disability benefits. The new Regulations became effective on March 27, 2017.

Five Step Review Process

The revised Regulations maintain a five-step analysis for the appeals process, in determining whether an individual is eligible for disability benefits. However, the Regulations change the standard for the review of evidence in the appeals process.

When an individual applies for disability benefits–whether it be Social Security income (“SSI”) or Social Security disability income (“SSDI”)– in order to be eligible for benefits, the SSA must determine that individual has a ‘total disability’ as defined in the SSA Regulations. An individual may not receive benefits for a partial disability or for a short-term disability.  If SSA denies disability benefits after initial review, a claimant has the opportunity to appeal this determination before an ALJ who will review the following questions:

1)  Is Individual Presently Engaged in Substantial Gainful Activity?

Upon reviewing an appeal, an ALJ will first examine whether an individual is presently engaged in Substantial Gainful Activity (“SGA”) SGA is work that involves significant and productive physical or mental duties, for pay or profit.   The ALJ can only find that the claimant if he or she is unable to do any substantial gainful activity by reason of any medically determinable physical or mental impairment— which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.  The impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

 2) Is the Impairment Severe?

If the individual is not engaged in SGA, SSA will then analyze whether the individual’s impairment is “severe”. SSA considers an impairment to be severe if it significantly limits an individual’s physical or mental ability to engage in basic work activities. Some examples of basic work activities include walking, standing, lifting, pushing, seeing, hearing, speaking and understanding directions.

3) Does the Impairment Meet or Equal the Social Security Bluebook Listing

Next, a determination will be made with regard to whether the impairment meets or equals the impairment listings under the Social Security Bluebook (20 C.F.R. part 404, subpart. P, appendix. 1).

4) Does the Impairment Prevent Claimant from Engaging in Relevant Work Done in the Past?

The next step in the analysis is whether the impairment prevents the claimant from engaging in relevant work he or she did in the past.

5) Can Claimant Make Adjustment to Other Work?

If the ALJ finds that the impairment prevents the claimant from engaging in relevant work, then the ALJ will make the final inquiry of whether the claimant, based on his or her education, age, and experience, can make an adjustment to other work.  If the ALJ finds that the claimant cannot make an adjustment to other work then the claimant’s claim for disability benefits should be granted.

Repeal of the ‘Treating Source/Physician Rule’

The updated Regulations effect the weight an ALJ gives to the evidence provided during an appeal hearing.  Specifically, the revised Regulations repeal the ‘treating source/physician rule’. Previously, the ALJ gave deference to a claimant’s treating physician’s medical opinion over the SSA doctor’s findings when the treating physician’s opinion was well-supported by medically recognized diagnostic techniques and the opinions were consistent with the rest of the evidence presented with the claim. The doctor’s opinion helped the ALJ understand the individual’s work related limitations. The ALJ gave deference to the treating physician on the premise that the treating physician had more information and a better understanding of the individual’s medical history and impairments.

The revised Regulations definitively state that the SSA no longer needs to defer to the treating physician, nor do they need to take into account a claimant’s statement with regard to symptoms, a diagnosis, or a medical opinion to establish the existence of impairment.

Now, rather than defer, the Regulations list factors that the ALJ must consider when presented with medical opinions of a treating physician. The ALJ may review the supporting explanations of the doctor’s opinion, weighing the consistency of the medical opinion with the rest of the hearing record. More specifically, the ALJ may consider the doctor’s relationship with the claimant based on how long the doctor has treated the individual, how many times the individual visited the doctor and whether the doctor examined the individual or simply read the medical file. The ALJ may also consider whether the doctor received advanced training and education to become a specialist in the field.

Moreover, the ALJ is no longer required to elucidate how he or she considered evidence from non-medical sources regarding an individual’s functional abilities and limitations. Evidence from non-medical sources typically includes testimony from the individual, their family members, employers and social welfare agency personnel. Such testimony is particularly significant as it reveals first-hand knowledge regarding the individual’s daily limitations. Now the ALJ is no longer required to state in their decision, the weight they placed on non-medical evidence or how it plays into the determination of eligibility of benefits.

These new Regulations may make establishing eligibility for disability benefits more difficult for claimants. If an SSA provider determines that upon evaluation an individual does not have a qualifying disability, the ALJ may be required to give deference to this determination, rather than an individual’s treating physician or non-medical testimony which may have more intimate knowledge regarding the claimant’s medical history. This change may require individuals to present more evidence than previously required. This may also lead to lengthier hearings or a denial of benefits requiring a further level of appeal.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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