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Post by bartleby on Mar 10, 2016 16:12:03 GMT -5
Propmaster, I noticed earlier in this post, you mentioned credibility. SSA is implementing SSR16-3 which it appears will eliminate accessing credibility. I would appreciate some input from you and others regarding what you think of this ruling? Thanks in advance..
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Post by Pixie on Mar 10, 2016 17:08:14 GMT -5
Let's do a separate thread for this as there may be more than a few comments, and we don't want to hijack the OMHA thread. I will go ahead and start it and move Bartleby's post to that thread (now this thread). Pixie.
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Post by hopefalj on Mar 10, 2016 18:04:36 GMT -5
I think it's a technical correction to essentially remove the term credibility from the evaluation since there are a few people, claimants included, that tend to think it means believability under the regs. I don't think the factors currently under SSR 96-7p will change or no longer be evaluated, but the language used to describe them well. Also mention of a clarification of what objective medical evidence means, too, I think.
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Post by upperwolfjaw on Mar 10, 2016 18:21:03 GMT -5
The numbering of the forthcoming SSR 16-1p, 2p and 3p is guessing at this point. But, one of them will be a replacement for SSR 96-7p.
In summary, they want to adopt the ACUS study result that symptom evaluation should avoid use of the word "credibility." They want to distinguish "evaluation of an individual's character or truthfulness" from "subjective symptom evaluation." The new ruling will redefine OME, and bolster SSA's typical (and usually successful these days) federal court argument that not all seven Polaski factors (see 20 CFR 404.1529(c)(3)) must be considered or discussed when evaluating symptoms (only those "pertinent").
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Post by cafeta on Mar 10, 2016 21:17:26 GMT -5
I await 16-3 with bated breath! It could provide much needed clarification, or just further muddle up the whole business!
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Post by montyburns on Mar 10, 2016 22:14:05 GMT -5
I for one applaud this development and hope aljs and writers take heed. I hope they change the FIT boilerplate as well. While the precise language of the ruling hasn't been released I hope it is the end of using "gotcha" credibility decisions to invalidate more objective evidence and the habit of some to call claimants liars in lieu of actually analyzing the evidence. I would prefer that 20 CFR 404.1529 be erased. Credibility is necessarily a part of every type of decision or determination, yet I know of no other area of law that mandates that one state the "credibility" of the party. The relative credibility will be evident by the ultimate finding/ decision. "Credibility" is, or should be, nothing more than the consistency of the allegations with the evidence. Moreover most favorable decisions I have written, the claimant really isn't 100% credible (despite fit saying they are). Many claimants allege ridiculous limitations (I can lift 2 pounds once a day): we're paying them on a sed RFC, not their exact allegations. Or take schizophrenics - disabled? You bet! Credible, hell no! If you were a cop and a schizophrenic told you he was being watched by the devil, would you rely on that information? No! Indeed I have represented many mentally ill people who asserted they could work, indeed were geniuses, but it was clear they were defestatingly ill. Anyway rant over, hopefully people heed this ruling.
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Post by cafeta on Mar 11, 2016 0:44:03 GMT -5
I for one applaud this development and hope aljs and writers take heed......I hope they change the FIT boilerplate as well. While the precise language of the ruling hasn't been "Credibility" is, or should be, nothing more than the consistency of the allegations with the evidence. Moreover most favorable decisions. [/quote Well said, I couldn't agree more!! And like you said, mental illness and credibility are strange or incompatible bedfellows! I once watch someone try to explain to a circuit judge why the claimant's somatofrom disorder wasn't accounted for in the credibility assessment........it was not pretty!
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Post by maquereau on Mar 11, 2016 8:19:31 GMT -5
I have long bemoaned decisions written as some kind of ultimate credibility showdown. It serves little to call the claimant a "liar" or other approximate term in the decision. Either the evidence supports the allegations or it doesn't. That's how I like my decisions to read. That's not to say that obvious inconsistencies are not to be pointed out, but I tend to note those in the decision by indicating that the evidence in question tends to undercut the claimant's allegation that, for example, he can only lift 2 pounds. I don't then need to make an additional finding that the claimant is a liar.
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Post by Pixie on Mar 11, 2016 8:40:19 GMT -5
I await 16-3 with bated breath! It could provide much needed clarification, or just further muddle up the whole business! My general observation is that the more TPTB write in an attempt to clarify, the more they muddle. Pixie.
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Post by Deleted on Mar 11, 2016 12:10:22 GMT -5
Always expect the muddle. And FIT won't be updated because TPTB think that we are all just days away from EBB catching on like wildfire. They are, of course, wrong.
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Post by Propmaster on Mar 11, 2016 12:51:56 GMT -5
The ruling is expected to be effective March 28, 2016. See DDSAL 947. Here's my take on all this.
1) It is not a regulatory change. The claimant's subjective allegations will still have to be evaluated using the same factors from 20 CFR 4094.1529 and 416.929. This is merely a new veneer for the same process.
2) The removal of the term credibility will not stop ALJs or writers from using the term in decisions. It has for many years been taught that the credibility should be "of the allegations," not "of the claimant." The errors will persist despite another try at fixing that aspect of the evaluation of alleged symptoms.
3) The ruling appears to intend to make it easier to find credibility accuracy of allegations in favorable decisions based solely on the medical evidence supporting the allegations, without the need for a full analysis. This has also existed, but not with concrete policy support. This could speed the ability to prepare favorable decisions that are compliant with policy.
4) The ruling appears to emphasize that the decision need not discuss all of the credibility allegation evaluation factors, but only those that are material to the outcome of the case. This appears to be an attempt to lessen the scrutiny of ALJ decisions in terms of credibility, but will not likely have that effect because a reviewer (AC, DC, or more importantly a Circuit Court) will potentially think a factor was important and the lack of discussion will make less clear what the ALJ thought of it.
5) Like with SSR 13-3p, writers will likely be tasked to change the boilerplate in FIT pending a system correction (CJB 13-01).
6) This is the first of the process unification rulings from 1996 to be replaced. It's the end of an era.
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Post by bartleby on Mar 14, 2016 8:47:50 GMT -5
Yes, the PUT rulings were the law and now the law is dead.... I wonder how soon TPTB will attempt to clarify the Treating Physician Rule?? As Pixie said, the more they clarify, the more they confuse. I have said before that I spend a great deal of my time trying to interpret the DICTA of the Agency that is confusing, conflicting, and contradictory.
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Post by montyburns on Mar 14, 2016 11:16:20 GMT -5
[quote author=" Propmaster" source="/post/91489/thread" timestamp="1457718716 6) This is the first of the process unification rulings from 1996 to be replaced. It's the end of an era.[/quote] Prop, do you know if all the other 96 rulings are going to be replaced, or if there are plans to do so?
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Post by Propmaster on Mar 14, 2016 12:27:53 GMT -5
No idea, sorry.
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Post by onepingonly on Mar 14, 2016 21:08:32 GMT -5
The credibility assessment is the main point, possibly the only point, of the hearing. It is the only thing the ALJ adds to the process. Technicians and doctors and experts have usually already looked at the case and decided, based on paper, that the claimant is not disabled. The agency does not appear and defend its decision. The whole point of the hearing is to give the claimant his or her one and usually only chance to persuade an actual human being that he/she is credible through live sworn testimony. The agency rules are explicit that a credibility determination is a requirement of a proper decision. I agree that what's assessed is not the credibility of the claimant as a person, but of his or her testimony, and of the opinion evidence. (Consider the many medical source statements suggesting numerous marked or extreme limitations, from a doctor whose actual treatment notes document mild symptoms or just say the patient is doing well with no complaints. Or consider DDS opinions that a person with well-documented and grave limitations can return to heavy work.) Remove that assessment and the claimant may as well skip the hearing, and the taxpayer can avoid the expense of the ALJ corps. Then substitute "token" for "due" before "process."
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Post by montyburns on Mar 14, 2016 22:45:58 GMT -5
The credibility assessment is the main point, possibly the only point, of the hearing. It is the only thing the ALJ adds to the process. Technicians and doctors and experts have usually already looked at the case and decided, based on paper, that the claimant is not disabled. The agency does not appear and defend its decision. The whole point of the hearing is to give the claimant his or her one and usually only chance to persuade an actual human being that he/she is credible through live sworn testimony. The agency rules are explicit that a credibility determination is a requirement of a proper decision. I agree that what's assessed is not the credibility of the claimant as a person, but of his or her testimony, and of the opinion evidence. (Consider the many medical source statements suggesting numerous marked or extreme limitations, from a doctor whose actual treatment notes document mild symptoms or just say the patient is doing well with no complaints. Or consider DDS opinions that a person with well-documented and grave limitations can return to heavy work.) Remove that assessment and the claimant may as well skip the hearing, and the taxpayer can avoid the expense of the ALJ corps. Then substitute "token" for "due" before "process." I don't disagree that having a hearing before a real live human being is important, but as Prop laid out pretty well, this is a change in flavor, not substance. The regulation is still there, and frankly even if it weren't credibility is necessarily part of making any sort of decision. FWIW, DDS makes "credibility" determinations as well (such as they are since the SDM/Dr. never meets/sees the claimant). But again, as you pretty well acknowledge, this isn't "credibility" of the person, so much as consistency of the allegations with the evidence. Getting a look at all the objective evidence, treatment notes, opinion evidence, and the other x-factors, and matching that up with the person in front of you to try and determine what this person can really do. Most claimants, IMHO, are not all that credible when it comes to particulars of how they function, (which is really wholly different than whether they are disabled under the rules), most just have a terrible ability to determine what they are capable of actually doing, because no-one actually tries to lift 20 pounds for two thirds of an 8 hour day, or time how long they can stand in an 8 hour period, etc. There's also a lot of underlying, probably not consciousness, psychological factors at work, feeling you have to impress how much this or that hurts by using somewhat hyperbolic language, that makes someone look less credible, even though they are clearly suffering from some degree of serious impairment.
Every person is different, and I think taking a look at all of the evidence, opinions, etc. while offering someone a chance to make their case through actual live human interaction is the value that having an ALJ brings. I just don't think that this properly falls under the rubric of "credibility" which suggests that someone must be of a high moral character or have some superior degree of truthfulness to be found disabled, which is what the regulation seems to suggest by requiring a credibility finding, and which the new ruling seems designed to push back against. I actually think this will afford claimants more true due process, because I don't think having minor inconsistencies in the records or allegations used to invalidate clearly objective evidence or extreme treatment discounted is affording the claimant meaningful due process. Or at least not the degree or kind of due process I would want if I were a claimant.
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Post by onepingonly on Mar 15, 2016 8:27:26 GMT -5
Monty, I think we're saying the same thing. Credibility assessment is not a moral character test or a game of gotcha on inconsistencies. It's the claimant's chance to convince, for example, that impairments that may look minor on paper or to a consultative examiner are in fact quite limiting, to explain apparent inconsistencies, or otherwise persuade. I agree too that the change seems one of flavor more than substance. Still, American jurisprudence is firmly rooted in a judge or jury assessing the credibility, call it what you may, of the testimony and other evidence. All the cases from the "real" judges say so, and they must know best. ;-)
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Post by montyburns on Mar 15, 2016 9:03:26 GMT -5
Monty, I think we're saying the same thing. Credibility assessment is not a moral character test or a game of gotcha on inconsistencies. It's the claimant's chance to convince, for example, that impairments that may look minor on paper or to a consultative examiner are in fact quite limiting, to explain apparent inconsistencies, or otherwise persuade. I agree too that the change seems one of flavor more than substance. Still, American jurisprudence is firmly rooted in a judge or jury assessing the credibility, call it what you may, of the testimony and other evidence. All the cases from the "real" judges say so, and they must know best. ;-) Agreed
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Post by Deleted on Mar 15, 2016 13:17:46 GMT -5
The credibility assessment is the main point, possibly the only point, of the hearing. It is the only thing the ALJ adds to the process. Technicians and doctors and experts have usually already looked at the case and decided, based on paper, that the claimant is not disabled. The agency does not appear and defend its decision. The whole point of the hearing is to give the claimant his or her one and usually only chance to persuade an actual human being that he/she is credible through live sworn testimony. The agency rules are explicit that a credibility determination is a requirement of a proper decision. I agree that what's assessed is not the credibility of the claimant as a person, but of his or her testimony, and of the opinion evidence. (Consider the many medical source statements suggesting numerous marked or extreme limitations, from a doctor whose actual treatment notes document mild symptoms or just say the patient is doing well with no complaints. Or consider DDS opinions that a person with well-documented and grave limitations can return to heavy work.) Remove that assessment and the claimant may as well skip the hearing, and the taxpayer can avoid the expense of the ALJ corps. Then substitute "token" for "due" before "process." ACUS found that faulty credibility analysis is a factor in ~20% of remands. Sure, we know what credibility means, but it's less clear to claimants and (sometimes) the federal courts. From my ODAR days, ALJ/writers often did a very poor job explaining credibility issues, sometimes vaguely using it as an excuse to pay or not pay a case in spite of the evidence. The analysis won't be significantly changed (as someone else noted, it's basically from the regs) -- (1) is there an underlying MDI the could reasonably cause the symptoms, and (2) how do the intensity and persistence of the symptoms limit the claimant's ability to perform work-related activities.
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Post by gcmarshall654 on Mar 15, 2016 17:26:57 GMT -5
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
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