EM on SDMs

JOA · Joined: 13 May 2004 Posts: 1786

SSA circulates internal communications called "Emergency Messages." It publishes a public list of those that are not classed as sensitive instructions. Here's a link for the public list of EMs:

http://tinyurl.com/69mfzs

On 7/8/08 SSA issued EM 08068, about making sure that RFC assessments done by lay Single Decision Makers (SDMs) are clearly marked that way, so as to avoid any confusion that these RFC assessments count as medical opinions.

This EM is not marked as sensitive. I can hardly see how it could be. But there's no public version just yet. Trusting to the absence of any indication that this is a sensitive instruction, I am posting the first three paragraphs (emphasis in the original).

LoopLaw · Joined: 11 Jul 2007 Posts: 16 Location: Missouri

By "recently became aware of external concerns" they mean, of course, that SSA recently lost an appellate decision on this issue. Senturia, I invite you to post your thoughts, since it was your case and you deserve credit!

LoopLaw · Joined: 11 Jul 2007 Posts: 16 Location: Missouri

Also, Senturia's work on this issue has caused me to routinely check the dates and read the tiny-print notes from DDS to get a hold on why (and when) the decisions were made in relation to any physician input for the RFC. Again, I invite Senturia to educate this board on this topic!

Senturia · Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri

I'm very pleased to see this EM issued! I have been working on this issue for some time. I am confident that I am one of the (if not the) source of the external concern mentioned. This EM and the amendments to the form that are still to come are a result of the 8th Circuit decision in Dewey v. Astrue, and at least one follow up District Court decision that demonstrated repeated misunderstanding of the nature of these forms by the ALJs (expecially ones visiting SDM states from other jurisdictions, but including local ALJs) and reviewing federal courts.

Following the decisions, I contacted my local OGC contact (some years ago we developed a system whereby I don't sue SSA until running issues past OGC to see if they can be dealt with - they almost always can, it turns out) with a detailed letter about the issue, pointing out the problem, the costs to SSA and claimants, and some easy (at least seeming to me) solutions to this problem (I have no idea if any of my proposed solutions were the ones chosen, since this is all I've seen of the EM so far). I subsequently was contacted by someone from OPO (I believe) who indicated that they found merit in the concerns I had raised, and that they would deal with it. It appears they are doing so.

This is really not an us vs them situation, in my opinion, because SSA was very receptive to the identified issues and has moved forward with trying to correct the problem. We are all on the same side for many issues, such as this, where the ability to discern the truth is simply impaired by a procedural or systemic difficulty.

As far as LoopLaw's comment about the DDS Case Action Notes: I have found several instances where DDS MCs have signed off on RFC assessments after the denial has already been issued. It concerns me that these RFC assessments are apparently not being created by the medical consultants, but that they are being asked to "sign off" on forms prepared by DDS counselors. (I have seen enough Post-It notes and other notes to know that this definitely happens.) Of course, a doctor could legitimately sign off on a form prepared by someone else after reviewing medical records; but the presence of a denial decision having been issued prior to receiving the signature implies solidly to me that the DDS counselor knows very well that no independent thought about the medical evidence will be forthcoming. I have received SSR 00-2p decisions disregarding the evidence from the DDS MC on this basis.

I am pursuing avenues to address this issue systemicly as well.

JOA · Joined: 13 May 2004 Posts: 1786

It's not all that hard to pick out SDM opinions in paper cases. But it can be a challenge for electronic cases. In point of fact, on a first reading I understand the EM to be aimed in particular at problems unique to electronic cases, especially for how DDS forms (831, 4734) display in the electronic folder.

I'm hoping to find something useful to say about identifying SDM opinions in electronic cases. But only when (or perhaps if) SSA publishes the EM. That hasn't happened yet.

BTW, is Senturia's reference to SSR 00-2p a typo? Maybe the intent was to cite SSR 96-2p.

Sandy Fambrough · Joined: 30 Jan 2005 Posts: 219 Location: Orlando, FL

My thought would be to look on the 831 for a Medical Consultant's signature and/or on the last page of the RFC for a Medical Consultant's specialty code . If this information is missing then it's likely a SDM case.

Craig Jarvis · Posted: Thu Jul 10, 2008 02:43 pm Post subject:

Fairly frequently (maybe once every month or two) I come across a PRFCA form filled out by an SDM and then filed in the F section of the folder as the claim is worked up for a hearing. I use to not think anything about seeing these forms in the F section, until one day my paralegal pointed out the the form that appeared in section F was signed by a DDS employee. I alway check the name now. The problem seems to stem from the fact that the SDM and MC use the same form. Then when the file hits the hearing office, the clerk that prepares the file sees the form and assumes that it is an MC opinion.

Easy solution: draft a separate form for the SDM and MC to use: one which clearly identifies the opinion as a medical opinion. The other which clearly identifies the form as a factual finding (which is what it is).

Apparently SSA is not going for an easy solution.

The other question is where should the form appear, if at all, in the folder. I once argued successfully that the form does not belong at all in the folder. The argument was that it is a factual finding. The formal opinion of the DDS examiner is contained in section A and is reviewable de novo. Including his or her work product in the file just confuses things. Other ALJs have said, "we'll just throw it into section E," to which I say, "okay, if you want to keep it in the file, I don't necessarily care where you put it, but understand that it is not evidence and cannot be considered as such. It is the factual finding of a decision maker and has no evidenciary value whatsoever." To which I usually get a shrug and a, "point noted counselor."

BTW, well done Senturia in pushing on this issue.

Senturia · Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri

No, 00-2p is not a typo. 00-2p governs the treatment of evidence suspected of being the product of fraud or similar fault. I have argued successfully that when a DDS counselor says "Sign this as non-severe" on a Post It note that survives in the file (presumably accidentally) and then issues a denial before waiting to see if the form was signed, there is reason to believe that the MC signed the form without reviewing the medical records or making any independent medical opinion. As such, the form is incorrect as to who completed it, and misleading. Even if not fraud (which it might be considered by some), there is reason to believe that similar fault is involved, which, under 00-2p, means that the evidence should be disregarded entirely. And, under 00-2p, this finding is admissible in other cases as well.

I make long-range plans... Smile

JOA · Joined: 13 May 2004 Posts: 1786

If you will check the link in the headpost, you will see that SSA has caught up with publishing several recent EMs, including EM 06068. I think it would good news to see a revised version of the EM. This does happen for EMs from time to time. Please note that several of the published EMs have "REV" in the title.

There are a number of reasons why EM 06068 richly deserves revision. One of these reasons is detectable only if you read past the three paragraphs I have posted above. If you do this, you will see that the EM includes some sample SDM RFC rationales that are just plain embarrassing.

But let's restrict our attention to the second of the three opening paragraphs. Here it is (emphasis added):

Senturia · Joined: 13 May 2004 Posts: 25 Location: St. Louis, Missouri

JOA, your post is wise.

I interpretted subsequent reviewing judges to mean Federal Court judges. That's where SSA would like to avoid embarassment, I assume. Like you, I assumed "weighted evidence" to mean evidence that needs to be weighed in the determinative process. If so, your sense that they are attempting to keep SDM opinions as evidence relevant to an ALJ determination (by implying this is "weighted evidence") might be true; but I tended to view this as distinguishing between weighted evidence (medical opinion) and non-weighted evidence (SDM opinions that need not be weighted). I see your read, though.

JOA · Joined: 13 May 2004 Posts: 1786

Dear Senturia:

Alas that I didn't make myself sufficiently clear.

The "dark conspiratorial view" I posted about is a view that I think we should discount in favor of your own more probable reading. Your more probable reading is that the authors of the EM were attempting to "distinguish[] between weighted evidence (medical opinion) and non-weighted evidence (SDM opinions that need not be weighted)."

I agree. When we are reduced to probable readings, the general principle is that probability tends to favor incompetence over conspiracy.

This kind of approach is neither deductive nor inductive. It's abductive, also known as "inference to the best explanation." A problem than can arise for this kind of reasoning is that sometimes the explanation that is best is nonetheless only weak.

Craig Jarvis · Posted: Fri Jul 11, 2008 05:59 pm Post subject:

I am not a conspiracist, but I think that one would have to acknowledge that there is an element within SSA that wants to give prior decisions some precedential value when concidered by an ALJ. Evidence of this: under DSI the ALJ must give an explanation as to why the FedRO is wrong if he/she is going to grant benefits. I don't know if you would call this an attempt to give the prior decision some evidenciary value or whether it is some sort of incurssion into de novo review, but it is what it is. Whatever you want to say about DSI, it was not the product of incompetence.

Olan Barnes · Joined: 17 May 2004 Posts: 1175 Location: Michigan

Came across this - for full disclosure I was a SDM.

Olan Barnes

--------------------------------------------------------------------------------------------------------------------------------------------------

STATEMENT FOR THE RECORD

Of The

NATIONAL ASSOCIATION OF DISABILITY EXAMINERS
Chuck Schimmels, President

P. O. Box 24400

Oklahoma City, OK 73124

Prepared For

Subcommittee on Social Security

Of the Committee on Ways and Means

Hearing on Social Security Disability Backlogs

February 14, 2007

Chairman Michael R. McNulty and members of the Committee, as you consider new approaches for addressing the backlogs for the Social Security Disability Program, the National Association of Disability Examiners (NADE) wishes to present our views on the on-going challenges facing the disability program.

NADE is a professional association whose purpose is to promote the art and science of disability evaluation. The majority of our members work in the state Disability Determination Service (DDS) agencies adjudicating claims for Social Security and/or Supplemental Security Income (SSI) disability benefits. In addition, our membership also includes SSA Central Office personnel, attorneys, physicians, and claimant advocates. It is the diversity of our membership, combined with our extensive program knowledge and “hands on” experience, which enables NADE to offer a perspective on disability issues that is both unique and which reflects a programmatic realism.

NADE members – throughout the state DDSs, Regional Office(s), SSA Headquarters, OHA offices and the private sector - are deeply concerned about the integrity and efficiency of both the Social Security and the SSI disability programs. Simply stated, we believe that those who are entitled to disability benefits under the law should receive them; those who are not, should not. We also believe decisions should be reached in a timely, efficient and equitable manner.

Significant challenges facing SSA in the disability program include dealing with inadequate resources, managing the backlogs, the Continuing Disability Review (CDR) program, on-going management of the implementation of the electronic disability process (eDib), and the continuing hardships imposed on disability beneficiaries by the Five Month Waiting Period and the 24 month Medicare Waiting Period. The disability program has become increasingly more complex as new advances in medicine and treatment have allowed individuals with disabilities to live longer and more productive lives. The complexity of the program, the changing nature of the program and the sheer volume of claims, coupled with diminishing resources, has brought a significant amount of stress to an already over-burdened system.

Resources

There is no doubt that backlogs in the disability program have increased. This is a direct result of the hard choices that needed to be made by SSA over the past few years to deal with the realities of inadequate budgeting and staffing. NADE feels that if SSA continues to be burdened with inadequate resources, the resulting backlogs and staffing problems will only multiply. For the past five years, the SSA budget has not been what the previous Commissioner of Social Security or the President requested from Congress. The prior Commissioner reported to Congress several times that if the President’s proposed budgets for SSA this past five years had been granted, SSA would have been able to eliminate its disability backlogs.

The complexity of the Social Security Disability Program, coupled with the need to produce a huge volume of work, justifies even more the need for adequate resources in order to provide the service that the American public has come to expect and deserves from SSA. It takes at least two years for a disability examiner to be fully trained and function independently to make timely and high quality disability decisions. It is critical the DDSs be provided with the resources needed to hire and train staff that can perform these duties. Low salaries, hiring restrictions and the stress of the job contribute to high turn-over in some DDSs. Given the hiring restrictions and inadequate resources placed on the SSA and DDSs, it is amazing that the disability backlogs are not even higher than they are currently and that the number of claims processed has continued to increase despite inadequate funding and resources.

SSA over the past decade has attempted to redesign the disability claims process in an effort to create new processes that will result in more timely and consistent disability decisions. Results of numerous tests undertaken by SSA to improve the disability process have not produced the results expected. In fact they have only slowed the processing of claims while employees adjusted to the constant changes. The impact of these changes has also contributed to the inability to manage the high workloads experienced during this time and decreased efficiency of operations as DDSs have struggled to incorporate these changes into their daily case processing.

Backlogs

Addressing disability backlogs is a high priority for NADE. However, we think it is important to remember that while there are a large number of cases pending at some DDSs, the most significant delays in the process still occur at the Office of Hearings and Appeals (OHA) where an average claim takes over 400 days, compared to the 89 day average at the DDS. NADE agrees that many people suffer needlessly as a result of these types of backlogs and that individual conditions can worsen or lead to death during this waiting time. It is critical that adequat