Social Security Issues New Rules on Evaluating Evidence to Determine Disability

Social Security has issued important new regulations which will go into effect for applications filed on or after March 27, 2017.  These regulations, in most cases, may make it harder for Social Security Disability Insurance (SSDI) applicants to succeed in their claim.  If your neurologist has suggested that you apply for disability, it is probably in your interest to do so prior to March 27th. 

 First, Social Security will now consider the notes and opinions of physician assistants and nurse practitioners as “acceptable medical source.”  Such classification is a factor that may justify giving that opinion greater weight than other opinions.   The list of acceptable medical sources will, of course, continue to include physicians.  Other medical sources, such as physical therapists, occupational therapists, nurses, though technically not “acceptable medical sources” may still be important in determining whether you are disabled.  This rule is generally favorable for applicants and recognizes the practicalities of care in the modern health care system, where, at least in some care models, PAs and NPs frequent provide most, if not all clinical care for patients.

The second change is that treating physician’s statement about an applicant’s ability to function will no longer be entitled to controlling weight.  Previously, and for all claims filed prior to March 27, 2017, the rule was that a treating source’s opinion should be adopted a statement of fact if it was “well-supported and not inconsistent with other substantial evidence in the record” SSR 96-2p.  While having a letter from your physician that describes your limitation will continue to be important, this letter will no longer be entitled to “controlling weight.”   For those with a neurologist willing to support their claim, this change may make demonstrating disability more difficult.

Under the new approach, Social Security will focus on the “persuasiveness” of evidence from different medical sources, based on “supportability and consistency.” As a practical matter, this means that office visit notes from routine visits will become increasingly important in the event that you apply for disability. Be diligent in discussing your symptoms and follow up on the suggestions provided by your clinicians.   Of course, frequent follow up and good communication with your clinicians has always been important for receiving good care and maximizing your health and quality of life.  What has changed is that such activities have become more important in the event that you need to apply for Social Security Disability benefits.

 Other changes are less likely to be important in most cases, but may be useful to know about in particular cases.  For example, the determination of other agencies, such as the Veteran’s Administration will no longer be given any special weight.  Further, statements, even from acceptable medical sources, about legal conclusions will not be considered.  Thus, it is not helpful, and may even be inadvisable, to ask your physician for a note that says, for example, “my patient is disabled.” 

By Thomas Stewart, M.S, J.D., PA-C.  Mr. Stewart directs the RMMSC’s Disability Law Program. For a free consultation, please contact RMMSC’s Disability Law Clinic at (720) 301-9708.