New Rules Pose Hurdles for Disability Claimants

The Five-Day Rule

One of the most significant changes, which countless claimants' representatives had challenged during the public comment period, relates to the so-called five-day rule. This rule states that claimants and representatives must submit all related evidence, or inform SSA about all available and related evidence, at least five business days prior to a scheduled disability hearing, unless one of a few narrow exceptions apply.

While a number of claimants' representatives have argued that this rule will make it increasingly difficult to gather a complete evidentiary record, given that many clients are indigent, lack working phones and can otherwise be difficult to reach, are often in-and-out of hospitals or other inpatient health care facilities, and given that some health care providers are not always compliant with medical records requests until the very last minute (if at all), an important caveat to this rule is the inform option. This option allows claimants and their representatives to “inform” the ALJ about outstanding evidence at least five business days prior to a scheduled hearing, and then the representative would be considered to be in compliance with the rule.

Additionally, SSA has clarified that the five-day rule does not apply to any post-hearing statements. So if an issue arises during the hearing that requires further clarification, a representative can still submit a post-hearing brief without violating the five-day rule.

Another caveat to the five-day regulation is that the final rule requires SSA to provide at least 75 days' notice of a scheduled hearing, whereas the current rules only require 20 days' notice. Many claimants' representatives advocated for this 75-day notice period.

Revision to Rules Regarding Evaluation Of Medical Evidence

In addition to the program uniformity regulations, there have been a number of changes to the rules regarding evaluation of medical evidence in 82 FR 5844 (Jan. 18). These new rules took effect March 27.

1. Acceptable Medical Sources

Under the new medical evidence rules, the list of acceptable medical sources has been expanded to include: advance practice registered nurses (APRNs), licensed audiologists, licensed optometrists, and physician assistants (PAs). While this change has been welcomed by many representatives, others have argued that licensed clinical social workers (LCSWs) should have also been added to the list of accepted medical sources, as many lients rely on social workers to provide mental health treatment.

2. No Treating Physician Rule

Another troubling development that claimants' representatives opposed during the public comment period is the abolishment of the treating physician rule. Previously, opinions of a claimant's treating doctors were to be given additional weight, and in some cases controlling weight, as compared with nontreating medical sources. The new rule affords ALJs more deference to weigh evidence as they see fit. Specifically, starting with claims filed on or after March 27, SSA will no longer give controlling weight to any one class of providers. Instead, ALJs are to weigh medical evidence based on “persuasiveness” and “consistency” with the other medical evidence of record.

3. Unsuccessful Work Attempt Regulations

The new rules also make it slightly easier for claimants and representatives to establish unsuccessful work attempts. The final rules at 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) remove the additional conditions that claimants previously had to meet when a work attempt had lasted between three and six months. Under the new rules, SSA will use the current three-month standard for all work attempts that are six months or less. Thus, work a claimant has performed will not be used as evidence of “substantial gainful activity” (SGA) during a period of six months or less if the work was stopped due to one's impairments, or the work was reduced to below the SGA threshold due to one's impairments, without requiring verification of the specific reason work ended or was reduced.

Conclusion

While this primer on the new rules for 2017 is in no way comprehensive, hopefully it helps clarify some of the recent changes in Social Security law. Given the new administration, we anticipate, plan to closely monitor and, when appropriate, will comment upon further amendments to the rules pertaining to the rights of claimants under the SSA's disability programs.

*****
Joseph B. Silver is an associate with the Law Offices of Silver & Silver and limits his practice to Social Security disability, private long-term disability, workers' compensation and employment law. He can be reached at [email protected]. This article also appeared in The Legal Intelligencer, an ALM sibling of this newsletter.

Over the course of the past few months (and prior to the inauguration of President Trump), the Social Security Administration (SSA) proposed and finalized several new agency rules and regulations that directly affect Social Security Disability (SSDI) and Supplemental Security Income (SSI) practices.

While there have been many significant changes to Social Security regulations with this latest round of rules, the purpose of this article is to highlight a few such new rules perceived to be the most significant for claimants and their representatives.

Additionally, while the new program uniformity regulations at the hearing and appeals council levels of the administrative review process 81 FR 90987 (Dec. 16, 2016), became effective Jan. 17, it should be noted that their implementation is not required until May 1.

The Five-Day Rule

One of the most significant changes, which countless claimants' representatives had challenged during the public comment period, relates to the so-called five-day rule. This rule states that claimants and representatives must submit all related evidence, or inform SSA about all available and related evidence, at least five business days prior to a scheduled disability hearing, unless one of a few narrow exceptions apply.

While a number of claimants' representatives have argued that this rule will make it increasingly difficult to gather a complete evidentiary record, given that many clients are indigent, lack working phones and can otherwise be difficult to reach, are often in-and-out of hospitals or other inpatient health care facilities, and given that some health care providers are not always compliant with medical records requests until the very last minute (if at all), an important caveat to this rule is the inform option. This option allows claimants and their representatives to “inform” the ALJ about outstanding evidence at least five business days prior to a scheduled hearing, and then the representative would be considered to be in compliance with the rule.

Additionally, SSA has clarified that the five-day rule does not apply to any post-hearing statements. So if an issue arises during the hearing that requires further clarification, a representative can still submit a post-hearing brief without violating the five-day rule.

Another caveat to the five-day regulation is that the final rule requires SSA to provide at least 75 days' notice of a scheduled hearing, whereas the current rules only require 20 days' notice. Many claimants' representatives advocated for this 75-day notice period.

Revision to Rules Regarding Evaluation Of Medical Evidence

In addition to the program uniformity regulations, there have been a number of changes to the rules regarding evaluation of medical evidence in 82 FR 5844 (Jan. 18). These new rules took effect March 27.

1. Acceptable Medical Sources

Under the new medical evidence rules, the list of acceptable medical sources has been expanded to include: advance practice registered nurses (APRNs), licensed audiologists, licensed optometrists, and physician assistants (PAs). While this change has been welcomed by many representatives, others have argued that licensed clinical social workers (LCSWs) should have also been added to the list of accepted medical sources, as many lients rely on social workers to provide mental health treatment.

2. No Treating Physician Rule

Another troubling development that claimants' representatives opposed during the public comment period is the abolishment of the treating physician rule. Previously, opinions of a claimant's treating doctors were to be given additional weight, and in some cases controlling weight, as compared with nontreating medical sources. The new rule affords ALJs more deference to weigh evidence as they see fit. Specifically, starting with claims filed on or after March 27, SSA will no longer give controlling weight to any one class of providers. Instead, ALJs are to weigh medical evidence based on “persuasiveness” and “consistency” with the other medical evidence of record.

3. Unsuccessful Work Attempt Regulations

The new rules also make it slightly easier for claimants and representatives to establish unsuccessful work attempts. The final rules at 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) remove the additional conditions that claimants previously had to meet when a work attempt had lasted between three and six months. Under the new rules, SSA will use the current three-month standard for all work attempts that are six months or less. Thus, work a claimant has performed will not be used as evidence of “substantial gainful activity” (SGA) during a period of six months or less if the work was stopped due to one's impairments, or the work was reduced to below the SGA threshold due to one's impairments, without requiring verification of the specific reason work ended or was reduced.

Conclusion

While this primer on the new rules for 2017 is in no way comprehensive, hopefully it helps clarify some of the recent changes in Social Security law. Given the new administration, we anticipate, plan to closely monitor and, when appropriate, will comment upon further amendments to the rules pertaining to the rights of claimants under the SSA's disability programs.

*****
Joseph B. Silver is an associate with the Law Offices of Silver & Silver and limits his practice to Social Security disability, private long-term disability, workers' compensation and employment law. He can be reached at [email protected]. This article also appeared in The Legal Intelligencer, an ALM sibling of this newsletter.