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How Do Social Security’s New Evidence Regulations Affect Me?

The Social Security Administration (SSA) published new medical evidence rules on January 18, 2017. (82 FR 5844). They became effective on March 27, 2017. If your claim was filed before March 27, 2017, your claim will not be affected even if it was remanded from a federal court or SSA’s Appeals Council. These regulations provide some help to claimants, but they can also undermine one of the strongest allies that many of our clients have – their treating providers.

On the positive side, these regulations finally recognize additional kinds of “acceptable medical sources.” An “acceptable medical source” is a medical provider that can diagnose a “medically determinable impairment.” You can only be found disabled if you have a “medically determinable impairment,” and previously those could only be diagnosed by a very narrow list of providers, mostly physicians, psychiatrists, and psychologists.

New to the list of “acceptable medical sources” are many kinds of nurse practitioners. This includes APRNs, Certified Nurse Midwives, Clinical Nurse Specialists, and Certified Registered Nurse Anesthetists. Also new to the list are Audiologists and Physician Assistants.

Still excluded as “acceptable medical sources” are many providers in the area of mental health. Licensed Clinical Social Workers, Licensed Marriage and Family Therapists, and Licensed Professional Counselors are still not “acceptable medical sources.” Many physical treatment providers are also still excluded, including Physical Therapists and Chiropractors.

These regulations can hurt many claimants because they reduce the weight that is due to a “treating source.” Many claimants, including those in our practice, have a close and supportive relationship with treating sources – usually a primary care physician. Under SSA’s old regulations, these sources could be given “controlling weight.” Even if the source wasn’t given “controlling weight,” SSA promised that they would “always give good reasons… for the weight we give your treating source’s medical opinion.” SSA decided that it doesn’t have to do that anymore.

Other damaging regulations hit some of the most vulnerable individuals applying for disability – disabled veterans. Previously, and under case law in many federal court circuits, opinions from the Department of Veterans Affairs (“VA”) deserved some weight, if not great weight. Now, SSA will effectively ignore VA decisions – “we will not provide any analysis in our determination or decision about a decision made by any other governmental agency.” 20 C.F.R. 404.1504 These opinions, as far as SSA is concerned, are “neither valuable nor persuasive.” This is despite some courts specifically saying that such decisions should not be ignored or “must be considered.” Chambliss v. Massanari, 269 F.3d 520 (5th Cir. 2001).

Even though these regulations have been in effect for over a year, they are just beginning to be applied at Social Security hearings around the country. It will be another 18 months or more before cases testing these regulations start to be filed in federal courts. Only then will we know exactly how much these new regulations harm the average claimant.

David Spunzo is a Rhode Island native, a graduate of LaSalle Academy, Providence College, and the New England School of Law.