Equaling a Listing (mildly off topic)

[Propmaster]

I read the following in another thread and did not want to respond there:

Dec 19, 2014 13:36:45 GMT -5 said:

 

Dec 19, 2014 12:58:37 GMT -5 said:

there was an atty who, when asked what his leagal theory was, said the claimant was disabled.  

Glad to see I am not alone in this; I get that nonresponse response a lot, a whole lot, when asking a rep for their case theory.  "My client is disabled, your honor."  sigh............

Other area ALJs see reps routinely fail: step 3.
 
Rep says "my client equals listing XXXXX". 
Me: No they don't. 
Rep: Yes they do, here is the treating physician report that says so. 
Me: No they don't ...  (sigh)  Please let me explain (again)  SSR 96-6p and 96-5p require that to "equal" a listing the finding must be made on the the opinion of a medical expert designated by the Commissioner and cannot be based on the conclusion of a treating physician.  There is no designated ME finding as such here.
Rep:  Ok, then my client meets listing XXX.
Me: But to meet that listing she must have this specific symptom/sign.  Does she have that?
Rep: No she does not...that is why we now claim she equals XXXXX..........

rinse, lather, repeat....aaaauuugggghhhh.

I know this is not a forum for the specifics of SSA law, but when something is brought up that I think needs clarification, I figure to err on the side of responding. If it is inappropriate, the admins can 'rectify' this thread.

1) It is not true that a finding of medical equivalence cannot be made based on a treating physician's opinion. The ruling (SSR 96-5p) states you may not give CONTROLLING weight to the opinion of a treating physician on an issue reserved to the Commissioner (including meeting or equaling a listing). But you still must weigh the opinion in light of the evidence as a whole, and it may still be entitled to great weight on identifying the severity of the specific medical findings that you might determine equal in severity the ones contained in the listing.

"However, treating source opinions on issues that are reserved to the Commissioner are never entitled to controlling weight or special significance. Giving controlling weight to such opinions would, in effect, confer upon the treating source the authority to make the determination or decision about whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled."

2) A medical expert does not have to agree that an individual medically equals a listing in order for the ALJ to find that it is so, a medical expert merely has to opine one way or the other. SSR 96-6p:

"The administrative law judge ... is responsible for deciding the ultimate legal question whether a listing is met or equaled. As trier of the facts, an administrative law judge ... is not bound by a finding by a State agency medical or psychological consultant or other program physician or psychologist as to whether an individual's impairment(s) is equivalent in severity to any impairment in the Listing of Impairments. However, longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issue of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight.
***
However, an administrative law judge and the Appeals Council must obtain an updated medical opinion from a medical expert in the following circumstances:

• When no additional medical evidence is received, but in the opinion of the administrative law judge or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable; or
  
• When additional medical evidence is received that in the opinion of the administrative law judge or the Appeals Council may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.

When an updated medical judgment as to medical equivalence is required at the administrative law judge level in either of the circumstances above, the administrative law judge must call on a medical expert."

The ALJ is never bound by the testimony of the medical expert - the ALJ merely must receive into evidence the opinion of an ME/MC and ensure that he or she weighs the opinion. If the ALJ decides that the claimant does or does not equal a listing despite what the expert says, that is within the ALJ's authority. This includes finding medical equivalence based on properly weighed opinion evidence from a treating physician that was not given controlling weight, but which the ALJ finds is more weighty on the issue (such as when the treating physician is the operating neurosurgeon, and the ME is an internist).

3) Of course, there is almost always an easier way to decide a favorable case than medical equivalence, so I don't know if this is practical. I just fear people learning a shorthand regarding medical equivalence.

You may now return to your regularly scheduled angst.

[JudgeRatty]

"It is not true that a finding of medical equivalence cannot be made based on a treating physician's opinion."

We have been taught that we can only rely upon a program physician's opinion as to equivalence, since they are familiar with the rules and listings. I believe that was addressed in recent OCEP training and SSR 96-6p.

Under SSR 96-6p:

Medical Equivalence to an Impairment in the Listing of Impairments.

The administrative law judge or Appeals Council is responsible for deciding the ultimate legal question whether a listing is met or equaled. As trier of the facts, an administrative law judge or the Appeals Council is not bound by a finding by a State agency medical or psychological consultant or other program physician or psychologist as to whether an individual's impairment(s) is equivalent in severity to any impairment in the Listing of Impairments.

******However, longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issue of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight.

[JudgeRatty]

As an aside, when I was a rep, I used to argue that treating physicians could offer an opinion as to equals. I used to set forth the listing criteria in the form of an interrogatory, and have them answer. It was persuasive for the ME at the hearing, but if there had not been an ME, based upon current policy, it would not have been acceptable from the way I understand it.

[bartleby]

Once again, I have to argue as to the conflicting and contradictory nature of the dicta. "It is not true that a finding of medical equivalence cannot be made based on a treating physician's opinion."

Since this is a double negative, does it not mean, "It is true that a finding of medical equivalence can be made based on a treating physician's opinion." ??

[owl]

Dec 19, 2014 16:24:06 GMT -5 bartleby said:

Once again, I have to argue as to the conflicting and contradictory nature of the dicta. "It is not true that a finding of medical equivalence cannot be made based on a treating physician's opinion."

Since this is a double negative, does it not mean, "It is true that a finding of medical equivalence can be made based on a treating physician's opinion." ??

I don't think the (first) quoted statement is from anything SSA has promulgated, bartleby. Propmaster was the one who wrote it. And it is a true statement because, technically, there just has to be an ME opinion in the record in order to find "equals." Thus conceivably there could be a case in which an ALJ rejects an ME opinion that says "does not equal" and finds equals anyway, giving greater weight to the treating source opinion.

And thus, the converse of the double negative -- "It is true that a finding of medical equivalence can be made based on a treating physician's opinion" -- is also true, again, as long as there is simply an ME opinion in the record (regardless of what it says).

Both statements are a bit incomplete and confusing, though, I will grant that.

[prescient]

You must have ME testimony that an impairments equals a listing, in order to make a finding that an impairment equals a listing.

If the ME testifies that an impairment equals a listing, an ALJ is not bound by this testimony.

That's the policy.

[Deleted]

Obviously in my rather quick scenario previous, I gave an offhanded example regarding the meeting or equalling a listing. The only point trying to be made was in regard to the preparation or lack thereof of reps in hearings.
As regards to equalling a listing ( not to be confused with the totally different meeting a listing) please note that the proposed scenario was not posed to be an overall treatise on the substantive rulings and theories regarding the parameters of equalling a listing as such alone would encompass a minimum of a full day seminar to cover the wild diversity of interpretations regarding same. I would note that in review of various court rulings and SSA SSRs the overriding theme continues to be stated and restated as follows "longstanding policy requires that the ALJ or the Appeals Council receive expert opinion evidence from a physician (or psychologist) designated by the Commissioner on the issue of equivalence." SSRs 96-6p, AR 00-2(7) 20 C.F.R. §§ 404.1526 and 416.926 This longstanding policy continues to be that of the Commissioner and AC as heavily reiterated during recent training. Whether or not an individual ALJ interprets and/or follows such longstanding policy is a matter of case by case discretion within the guidelines of the particular circuit jurisdiction which may apply thereto.

This is a great topic to discuss which way to proceed at Step 3, but probably should be one reserved for a professional seminar and not well suited on this board.  My bad, my apology.  Feel free to remove Mr. Moderator, for another time and board.

[onepingonly]

I think in the vast majority of cases, if the claimant clearly does not meet the listing but there is some very persuasive TP opinion relevant to equivalence (but no ME opinion), a viable case can be made at step 5. In such rare cases when disability truly turns solely and entirely on equivalence, it's easy enough just to get an ME.

[Propmaster]

It turns out I can lead this back into relevant territory. I mentioned in another thread that the training received by new ALJs is not precisely equivalent to the training the new ALJs practically need (in my opinion). This is an example of training masquerading as policy-compliant, when in reality it seeks to influence the performance of an ALJs job in ways not contemplated by the written policy. The restatements by repliers above using the same language I quoted for the opposite conclusion are examples of the students in the class having 'learned' what the 'teacher' wanted, not what was written in the 'textbook.'

We all seem to be looking to the exact same guidance. It says 1) an ALJ is not bound by the ME; and 2) the ME must give an opinion that is weighed by the ALJ. From where does the seeming "policy" cited by prescient and others stem? The quoted phrases are from actual policy statements. Look back at your training materials. They always, carefully, avoid saying anything like the conclusion you took from training, probably from the way the oral presentation was made. An ALJ cannot possibly be BOTH a) unable to find medical equivalence if the ME says it is not present and b) not bound by the opinion of the ME. Having to do what the ME says is the definition of being bound by his or her opinion.

You learned what they wanted you to learn - just do what the ME says. You did not learn the actual policy - make sure you ask an ME his or her opinion before deciding the case independently.

What you learned may be better, it may be 'right,' and 'just,' and so on. But please be aware that the policy as you would generally summarize it is explicitly not the actual policy. You will not get anyone at ODAR to ever tell you in writing that an ALJ may not find medical equivalence if an ME says there is not medical equivlence. They cleverly phrase it to read as if that's what they said, but they did not say it, and they will not say it, because that would finally be a really large APA violation the union could sink its teeth into.

And if you want some fun - ask them if POMS is binding on an ALJ.

[Propmaster]

Short practical example for those who think I'm a moron:

I know of an ODAR that has an ME who is incompetent (only one ALJ still uses him, but that's another story). The writers have to deal with his occasionally inane testimony such as that a claimant meets a respiratory listing because the FEV1 values were "way higher" that the listed values (which, for those who do not know, are thresholds BELOW which a listing is met, not above). I can imagine a situation in which a claimant obviously equals a listing by virtue of medical findings exactly equal in severity to those of an impairment listed for another body system. This ME could easily be confused by the facts or questions and testify that the claimant does not meet or equal a listing. No weight would be given to the obvious erroneous testimony, but does policy require that another ME must be scheduled, with the delays and costs associated with a supplemental hearing, when the evidence (theoretically supported by well-qualified treating physician findings) convinces the ALJ by the requisite preponderance that the listing is equaled? I do not believe so. I believe the ALJ can make his or her decision after the hearing with the very unqualified ME.

[Propmaster]

Dec 19, 2014 16:24:06 GMT -5 bartleby said:

Once again, I have to argue as to the conflicting and contradictory nature of the dicta. "It is not true that a finding of medical equivalence cannot be made based on a treating physician's opinion."

Since this is a double negative, does it not mean, "It is true that a finding of medical equivalence can be made based on a treating physician's opinion." ??

I do not understand the confusion.

In the initial posting, I quoted an author as having said that a finding of medical equivalence, "cannot be based on the conclusion of a treating physician." I contradicted the quoted statement by negating it, "it is not true that...." As you point out, this is equivalent, basically (because this is not an exercise in logic) to saying that a treating physician opinion can be the basis of a finding of medical equivalence. However, I intended my comment to relate back to a particular part of the quoted post, so I used the same phrasing with a negation.