Eliminating Credibilty Determination SSR 16-3

[Deleted]

Mar 15, 2016 17:26:57 GMT -5 gcmarshall654 said:

I recently won a case in Federal Court on Credibility and I almost didnt even put it in
I didnt really see it as an issue but the Federal Court obviously did

Well if someone lies about their tax returns but they have a legitimate medical problem like a massive stroke and are paralyzed for life, I sure would hope a court would find that using lying on your tax returns as a reason to deny someone disability a no go. By the same token, if someone claims mental disability but it's discovered that he's running a multinational corporation one could assume that the two don't add up. Extremes of course, but examples of what I think they mean in getting rid of credibility as we commonly know it.

[marz]

Here's a link to the federal register notice of SSR 16-3p which will rescind and supersede SSR 96-7p: s3.amazonaws.com/public-inspection.federalregister.gov/2016-05916.pdf It is scheduled to be published tomorrow. socsecnews.blogspot.com/

[linky]

Unfortunately I heard from someone in the know that the only reason to use an ALJ is because attorneys/judges are trained more than anyone else in making credibility judgements (just like psychologists study mental illness) of course this does not mean Judges are good at credibility determinations , but nonetheless judges are the people trained in this area. So this particular person told me that if credibility goes away the need for ALJs will probably go away.

[Deleted]

Yawn. Much ado about nothing.

[Deleted]

Mar 15, 2016 17:57:31 GMT -5 @tink said:

Mar 15, 2016 17:26:57 GMT -5 gcmarshall654 said:

I recently won a case in Federal Court on Credibility and I almost didnt even put it in
I didnt really see it as an issue but the Federal Court obviously did

Well if someone lies about their tax returns but they have a legitimate medical problem like a massive stroke and are paralyzed for life, I sure would hope a court would find that using lying on your tax returns as a reason to deny someone disability a no go. By the same token, if someone claims mental disability but it's discovered that he's running a multinational corporation one could assume that the two don't add up. Extremes of course, but examples of what I think they mean in getting rid of credibility as we commonly know it.

Most important paragraph of SSR16-3:

Adjudicators must limit their evaluation to the individual’s statements about his or her symptoms and the evidence in the record that is relevant to the individual’s impairments. In evaluating an individual’s symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual’s symptoms and given the adjudicator’s evaluation of the individual’s symptoms, whether the intensity and persistence of the symptoms limit the individual’s ability to perform work-related activities or . . .

[mercury]

Frankly, any ALJ/writer should already be limiting it to issues relevant to impairments. If the ALJ wants to attack the cl's credibility because of filing for unemployment at the same time of disability, you can easily claim it relates because they were saying they were capable of working. To me, it is the difference between characterizing them as dishonest and stating that it suggests they were capable of work.

I wonder specifically which types of credibility analyses they're trying to get rid of. I guess the real question is what will cross the line demarcated by 16-3p and get remanded by AC/DC.

[cafeta]

Mar 15, 2016 17:26:57 GMT -5 gcmarshall654 said:

I recently won a case in Federal Court on Credibility and I almost didnt even put it in
I didnt really see it as an issue but the Federal Court obviously did

I've defended cases at the district and circuit courts where the court remanded, for pay/calculation of benefits, based solely on credibility........and neither party briefed it! Plaintiff/appellant did not raise it, so defendant/appellee didn't defend! Nonetheless, sua sponte, the court fount the issue dispositive!

"Sua sponte" auto corrects to "sua sponge." You decide the best!

After reading the new ssr, I see more "muddle!"

[cafeta]

Mar 15, 2016 22:13:37 GMT -5 mercury said:

Frankly, any ALJ/writer should already be limiting it to issues relevant to impairments. If the ALJ wants to attack the cl's credibility because of filing for unemployment at the same time of disability, you can easily claim it relates because they were saying they were capable of working. To me, it is the difference between characterizing them as dishonest and stating that it suggests they were capable of work

...........

But what if the relevant State's unemployment laws allow an applicant/recipient to collect benefits on the basis of performing no more than part time, or, less than SGA? Is receipt of UE benefits indicative of credibility there? I've seen that evidentiary conflict completely ignored!

[carrickfergus]

I think a distinction should be drawn between determinations of "overall" credibility based on a claimant's possibly checkered past, and "specific" credibility of allegations of severity of Sx and resulting functional limits, based things such as documented deceptiveness to medical providers, CDI reports, inconsistent reporting of symptoms, notes in the record suggesting functioning at a level greater than alleged, and testimony given before the ALJ that is contradicted by other parts of the record. The former I try to avoid; the latter I see as doing my job.

In any event, it will be fun watching how the AAJ analysts grapple with this ruling

[maquereau]

There are infinite variations on the scenarios offered. Let's say I have a claimant who has been dealing drugs and maybe has convictions for same. I might disapprove his application - not because he was dealing drugs but because the fact that he was doing so leads me to believe that he is able to interact with people, leave his house, perform basic arithmetic, etc, despite the fact that he alleged inability to work because of extreme social phobia, panic attacks, and depression.
Now, on the other hand, if you have someone before you who is a habitual forger and who has a lengthy record of crimes of dishonesty, maybe you are more inclined to doubt the veracity of the allegations simply on that basis alone.

The possible scenarios are innumerable. I don't know that the ruling will do much for us, but I do feel better about decisions where my judgment principally concerns the correspondence (or lack thereof) between allegations and evidence.

[hopefalj]

Mar 16, 2016 3:40:11 GMT -5 cafeta said:

Mar 15, 2016 22:13:37 GMT -5 mercury said:

Frankly, any ALJ/writer should already be limiting it to issues relevant to impairments. If the ALJ wants to attack the cl's credibility because of filing for unemployment at the same time of disability, you can easily claim it relates because they were saying they were capable of working. To me, it is the difference between characterizing them as dishonest and stating that it suggests they were capable of work

...........

But what if the relevant State's unemployment laws allow an applicant/recipient to collect benefits on the basis of performing no more than part time, or, less than SGA? Is receipt of UE benefits indicative of credibility there? I've seen that evidentiary conflict completely ignored!

Or what if you have a 54yo former CNA that said they were looking for some type of desk job? Obviously there are occasionally issues that should be developed, but the general point that some seemingly non-disability issues actually are relevant to the decision. For instance, it's not uncommon to see an individual tell their psych provider or a psych CE that their felony convictions keep a lot of places from wanting to hire them during their alleged period of disability. Now you shouldn't say the person's not credible because they're a felon, but is it improper to point out that part of their issue in obtaining a job they've is likely their history rather than their impairments? I don't think so, but others may disagree.

[bartleby]

"Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual’s symptoms and given the adjudicator’s evaluation of the individual’s symptoms, whether the intensity and persistence of the symptoms limit the individual’s ability to perform work-related activities or . . ."

The problem is, there is no way for us to "judge" a claimant's subjective symptoms, complaints or limitations, without some type of credibility involvement. Any impairment can and will cause different symptoms and limitations in different people. A diagnosis of DDD or DJD can cause some claimant's little to no limitations and can be crippling to others. The Agency is attempting to get us to make "objective" findings of "subjective" complaints without considering the credibility of the person with the "subjective" complaints. We can't do it. Physicians can't do it and they are trained in diagnosis and prognosis. The Agency is taking away a very important tool in our tool kit. Medical studies have shown that MRI's are ineffective in establishing pain intensity and out come of back problems 40% of the time. In other words, an MRI showing and herniated disc at L3-4 may cause crippling pain in some claimant's and go unnoticed in other claimant's. Somewhere along the line, we have to consider the claimant's statements and their credibility regarding limitations. If this stuff were cut and dry, all same diagnosis would have the same prognosis and treatment, but they don't. Physicians know there are variables and that diagnosis are not always accurate. Lab findings alone have been found to be 30-40% inaccurate. Folks, this is rocket science, don't let them blow smoke up your behind..

[funkyodar]

When you have a claimant testify under oath they haven't worked since the AOD, yet a new hire report shows ongoing at least part time work.

When you have a claimant testify they can't drive, shop or handle money, but you have a third party report from their spouse saying they do all those things.

When the mom of a child claimant tells you the kid is always in trouble at school, but teacher questionnaires and ed records say he is an angel.

I know. I know. All of those examples should be used to address the "credibility" of the allegations not the claimant as a person.

Yet, at least once a year I see some news report where someone, like the infamous NY firefighters, are getting disability. Citing inability to walk or maybe fear of going out in public. But OIG finds Facebook posts about Bahamas deep sea diving trips. Of course, I as the adjudicator am forbidden to even look at, much less consider, a claimant's social media postings. But bet your arse it's aljs that will be the subject of the resulting congressional witch hunt.

Once a quarter I have a claim wherein DDS had referred it to a fraud investigator. In the file will be a surveillance and investigation report showing the claimant regularly drives, shops alone and routinely hits the casinos despite alleging a crippling inability to leave home.

And probably once a month I get a nice little email telling all ssa employees if we "see something, say something" and to report fraud. I guess we say something, just not in any written opinion.

I dunno where I come down on this change. I see merit in clarifying that the issue of disability should come down to objective support for subjective complaints and just because the claimant may be a habitual liar doesn't mean he isn't a disabled habitual liar.

But, when the judge that is supposed to function as the gatekeeper of the trust fund is essentially being hamstrung on calling out blatant fraud, something is askew in the process.

All my opinion, of course.

Funk

[Deleted]

SSR 16-3p

It was published in the Federal Register, effective today.

[Deleted]

Here's a link to the ACUS report that led to SSR 16-3p.

[onepingonly]

Are they also rescinding/amending HALLEX I-2-5-69, which directs ALJs to apply SSR 96-7p?

[Deleted]

Mar 16, 2016 11:20:23 GMT -5 @superbonbon said:

Here's a link to the ACUS report that led to SSR 16-3p.

Thanks for the link. Read some parts of the report and skimmed through the rest.  Honestly, it was quite mild.  It could of been much worse.  There's a good reason for this. The old guard got away with practices like this for too long and unfortunately some of the new guard thinks that assessing credibility irrespective of its relation to the impairment makes for being a good ALJ because after all the old
guard did it. Never mind that it was wrong on its face.  My opinion.

[linky]

You almost need whistleblower protection to look at someone's Facebook page. But I can certainly understand that Facebook pages are not reliable evidence. But it seems like it's something you could at least asked the claimant about like any insurance adjudicator would do. There's something fishy about these rules. One thing is for sure, ALJs and management don't agree on whether Social Security cases should be decided in a vacuum.

[Deleted]

Mar 16, 2016 8:38:16 GMT -5 funkyodar said:

When you have a claimant testify under oath they haven't worked since the AOD, yet a new hire report shows ongoing at least part time work.

When you have a claimant testify they can't drive, shop or handle money, but you have a third party report from their spouse saying they do all those things.

When the mom of a child claimant tells you the kid is always in trouble at school, but teacher questionnaires and ed records say he is an angel.

I know. I know. All of those examples should be used to address the "credibility" of the allegations not the claimant as a person.

Yet, at least once a year I see some news report where someone, like the infamous NY firefighters, are getting disability. Citing inability to walk or maybe fear of going out in public. But OIG finds Facebook posts about Bahamas deep sea diving trips. Of course, I as the adjudicator am forbidden to even look at, much less consider, a claimant's social media postings. But bet your arse it's aljs that will be the subject of the resulting congressional witch hunt.

Once a quarter I have a claim wherein DDS had referred it to a fraud investigator. In the file will be a surveillance and investigation report showing the claimant regularly drives, shops alone and routinely hits the casinos despite alleging a crippling inability to leave home.

And probably once a month I get a nice little email telling all ssa employees if we "see something, say something" and to report fraud. I guess we say something, just not in any written opinion.

I dunno where I come down on this change. I see merit in clarifying that the issue of disability should come down to objective support for subjective complaints and just because the claimant may be a habitual liar doesn't mean he isn't a disabled habitual liar.

But, when the judge that is supposed to function as the gatekeeper of the trust fund is essentially being hamstrung on calling out blatant fraud, something is askew in the process.

All my opinion, of course.

Funk

I don't think you are being hamstrung.  These examples you gave are all inconsistencies as to the severity, intensity and frequency of symptoms.  You are supposed to address the severity of the symptoms and whether there is both objective and clinical evidence to support it.  No credibility in that at all that I see unless I am missing something. It will be interesting to see how it all plays out. 

[Deleted]

Mar 16, 2016 12:45:08 GMT -5 linky said:

You almost need whistleblower protection to look at someone's Facebook page. But I can certainly understand that Facebook pages are not reliable evidence. But it seems like it's something you could at least asked the claimant about like any insurance adjudicator would do. There's something fishy about these rules. One thing is for sure, ALJs and management don't agree on whether Social Security cases should be decided in a vacuum.

I think it's a safe bet that Applicants/Canidates for ALJ poisitions have their facebook pages and other social media accounts checked out. If it's on the internet it should be considered public information.  How the information is used and I what context/setting is an entirely different matter and that's one instance where one must excercise judgement.