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Post by Propmaster on Mar 16, 2016 13:37:11 GMT -5
Here's my take on the Ruling as published.
1) First of all, it does not abolish credibility, it abolishes the word "credibility" because it is potentially misleading to laypeople. Since credibility was simply what we called the regulatory process of evaluating the amount of weight to give a claimant's allegations when determining the RFC, the use or lack of use of the word is irrelevant to the process and changes nothing. The regulations never said to make a credibility determination, but to evaluate whether the statements about the symptoms are supported by the evidence; they have remained unchanged.
2) Rather than incorrectly saying "the claimant's allegations are not fully credible" without support, an ALJ or writer can now incorrectly say "the claimant's statements regarding his or her symptoms are given little weight in determining the RFC" without support. The support that would be provided for either finding when making such a finding correctly is virtually identical.
2) My personal autotext simply changed in most cases from "XYZ reduces the credibility of the claimant's allegations" to "XYZ lessens the extent to which the evidence supports the claimant's statements concerning the intensity , etc...."
3) The clarification regarding when we do not need to make credibility findings is more likely intended to influence eventual court review than to affect ALJ decisions.
4) The statement that a severe impairment is anything that affects a claimant's ability to work is either a grievously sloppy misstatement of the law or a deliberate attempt to further minimize the point of having step 2 at all. It should have said a severe impairment is anything that "more than slightly or minimally" or anything that "significantly" affects an individual's ability to work.
5) The ruling tried so hard to use only positive language, it failed to give the option to ever find a negative amount of support for a statement. The most negative conclusion it makes is that something "is less likely to support the statement." Less likely is still an amount of "likely." It's nice to be positive, but there is a gaping hole regarding how to describe inaccurate statements. You cannot be negatively likely to support something.
6) The Ruling defines signs and laboratory findings and then completely mixes them up. The following is a quote:
Is the Ruling suggesting that we are going to give less weight to a clinical finding (i.e., a SIGN) on examination of limb weakness by a medical doctor because we do not see a report of muscle wasting as well? Is it calling muscle weakness a symptom? How does lack of muscle wasting make documented weakness less consistent with alleged weakness. The Ruling means to say that the lack of muscle wasting makes the claimant's alleged severity of the muscle weakness less supported by the evidence, but it spends so much effort beating around the bush, it confuses itself. The muscle weakness is clearly a clinical sign on examination that supports the claimant's allegations, and it is certainly outside an ALJ's purview without an ME to disregard it (or be "less likely to regard it") because there is not also a sign of muscle wasting. We must bear in mind that policy wonks wrote this for not only ALJs, but for DDS examiners and consultants, some of whom can make the medical judgments appropriately. But it would have been more intelligent to pick an example that applied to all levels of adjudication, since you are binding all levels. 7) There are more good cause factors listed for failure to seek and follow prescribed treatment. The new ones adopt Court opinions and other trends in finding failure to comply with treatment to be a symptom of mental illness in many/most cases and acknowledge that some people simply do not understand complicated treatment regimens (like, "use up all your medicine, even if you feel better"). There is also a special one for kids that is so broad as to remove the ability to use this factor with children. 8) The ruling provides better language for evaluating the inconsistency between a claimant's allegations in different applications for benefits and in applications for different kinds of benefits.
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Post by Deleted on Mar 16, 2016 13:48:37 GMT -5
Here's my take on the Ruling as published.
1) First of all, it does not abolish credibility, it abolishes the word "credibility" because it is potentially misleading to laypeople. Since credibility was simply what we called the regulatory process of evaluating the amount of weight to give a claimant's allegations when determining the RFC, the use or lack of use of the word is irrelevant to the process and changes nothing. The regulations never said to make a credibility determination, but to evaluate whether the statements about the symptoms are supported by the evidence; they have remained unchanged.
2) Rather than incorrectly saying "the claimant's allegations are not fully credible" without support, an ALJ or writer can now incorrectly say "the claimant's statements regarding his or her symptoms are given little weight in determining the RFC" without support. The support that would be provided for either finding when making such a finding correctly is virtually identical.
2) My personal autotext simply changed in most cases from "XYZ reduces the credibility of the claimant's allegations" to "XYZ lessens the extent to which the evidence supports the claimant's statements concerning the intensity , etc...."
3) The clarification regarding when we do not need to make credibility findings is more likely intended to influence eventual court review than to affect ALJ decisions.
4) The statement that a severe impairment is anything that affects a claimant's ability to work is either a grievously sloppy misstatement of the law or a deliberate attempt to further minimize the point of having step 2 at all. It should have said a severe impairment is anything that "more than slightly or minimally" or anything that "significantly" affects an individual's ability to work.
5) The ruling tried so hard to use only positive language, it failed to give the option to ever find a negative amount of support for a statement. The most negative conclusion it makes is that something "is less likely to support the statement." Less likely is still an amount of "likely." It's nice to be positive, but there is a gaping hole regarding how to describe inaccurate statements. You cannot be negatively likely to support something.
6) The Ruling defines signs and laboratory findings and then completely mixes them up. The following is a quote:
Is the Ruling suggesting that we are going to give less weight to a clinical finding (i.e., a SIGN) on examination of limb weakness by a medical doctor because we do not see a report of muscle wasting as well? Is it calling muscle weakness a symptom? How does lack of muscle wasting make documented weakness less consistent with alleged weakness. The Ruling means to say that the lack of muscle wasting makes the claimant's alleged severity of the muscle weakness less supported by the evidence, but it spends so much effort beating around the bush, it confuses itself. The muscle weakness is clearly a clinical sign on examination that supports the claimant's allegations, and it is certainly outside an ALJ's purview without an ME to disregard it (or be "less likely to regard it") because there is not also a sign of muscle wasting. We must bear in mind that policy wonks wrote this for not only ALJs, but for DDS examiners and consultants, some of whom can make the medical judgments appropriately. But it would have been more intelligent to pick an example that applied to all levels of adjudication, since you are binding all levels. 7) There are more good cause factors listed for failure to seek and follow prescribed treatment. The new ones adopt Court opinions and other trends in finding failure to comply with treatment to be a symptom of mental illness in many/most cases and acknowledge that some people simply do not understand complicated treatment regimens (like, "use up all your medicine, even if you feel better"). There is also a special one for kids that is so broad as to remove the ability to use this factor with children. 8) The ruling provides better language for evaluating the inconsistency between a claimant's allegations in different applications for benefits and in applications for different kinds of benefits. Propmaster, here's my read. If the claimant says he can only stand or walk a few minutes a day because of his impairment, one could reasonably expect that this symptom would cause muscle wasting. However, on physical examination the fact that only decreased muscle strength is found does not diminish or negate that the claimant still has pain and evidence of that pain exists the clinical findings showing reduced muscle strength. In other words just because the claimant says they can only stand or walk for a few minutes a day does not mean that you have to have exact clinical findings of the same, namely muscle wasting
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Post by Propmaster on Mar 16, 2016 13:58:31 GMT -5
EDIT: I started typing before you edited yours, Tink, oops. I think you reversed the outcome of what I understood to be your post, but now I have a different understanding of the Ruling than you. Original message as follows: ---- I agree with that, although if he was a lumberjack, his muscle wasting might not be clinically remarkable after only a year. My problem stems from the example starting with the claimant's alleged pain causing limitation in his ability to stand and walk. Weakness in his legs could support the presence of pain or could be a cause of pain with prolonged walking. Its presence has a positive effect on the extent to which the alleged pain is supported by the objective evidence. Muscle weakness is a clinical sign because it is reproducible, takes professional judgment to evaluate, is observable, and is (arguably) not easy to fake (believably). As a separate issue, there is a lack of something that might be there or might be expected to be there - muscle wasting. The lack of muscle wasting causes arguably (because maybe the claimant has physical therapy isometric exercises) a negative effect on the extent to which the allegation is supported. Those are two factors, and the Ruling (perhaps) assumes that the muscle wasting is more reliable (as it is harder to fake). But the Ruling states: That makes no sense to me. The reduced muscle strength REMAINS consistent with the alleged symptoms, even if other things are inconsistent with the symptoms. The Ruling is avoiding saying: It SHOULD be saying:
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Post by Deleted on Mar 16, 2016 14:11:04 GMT -5
EDIT: I started typing before you edited yours, Tink, oops. I think you reversed the outcome of what I understood to be your post, but now I have a different understanding of the Ruling than you. Original message as follows: ---- I agree with that, although if he was a lumberjack, his muscle wasting might not be clinically remarkable after only a year. My problem stems from the example starting with the claimant's alleged pain causing limitation in his ability to stand and walk. Weakness in his legs could support the presence of pain or could be a cause of pain with prolonged walking. Its presence has a positive effect on the extent to which the alleged pain is supported by the objective evidence. Muscle weakness is a clinical sign because it is reproducible, takes professional judgment to evaluate, is observable, and is (arguably) not easy to fake (believably). As a separate issue, there is a lack of something that might be there or might be expected to be there - muscle wasting. The lack of muscle wasting causes arguably (because maybe the claimant has physical therapy isometric exercises) a negative effect on the extent to which the allegation is supported. Those are two factors, and the Ruling (perhaps) assumes that the muscle wasting is more reliable (as it is harder to fake). But the Ruling states: That makes no sense to me. The reduced muscle strength REMAINS consistent with the alleged symptoms, even if other things are inconsistent with the symptoms. The Ruling is avoiding saying: It SHOULD be saying: Sorry Prop I was having a heck of a time editing. It kept bumping me off. Actually muscle wasting is more reliable when someone alleges that he can only stand or walk a few minutes a day. Wasting is the logical outcome. And the regulations require 12 months. If you are only standing or waking a few minutes a day for 12 months you will have muscle wasting. Don't you agree? The ruling makes light of the fact that people's pain is different for everyone. All in all, decreased muscle strength is acceptable indicia of pain. I really think that's all it's saying
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Post by Propmaster on Mar 16, 2016 14:22:24 GMT -5
I agree that someone who alleges he or she can only stand or walk for a few minutes a day should have muscle wasting from lack of use as a logical outcome. The absence of muscle wasting is what I would formerly have called a factor that tends to decrease the credibility of the claimant's allegations of pain that prevents him or her from standing or walking more than a few minutes per day.
I agree with you also that muscle weakness is another indicator of lack of use of the lower limbs, also consistent with inability to stand or walk more than a few minutes per day. I would formerly have called this a factor that tends to increase the credibility of the claimant's etc.
I do not agree that the Ruling agrees with us. The Ruling, as I read it, is saying that the lack of muscle wasting causes the muscle weakness to be inconsistent with the claimant's statements regarding his or her pain. I believe the Ruling authors got confused or there were too many cooks and the example ended up a mishmash.
The example did not have to include a sign supportive of the claimant's allegation - that simply confuses things. The POINT of the example is that sometimes your objective medical evidence directly contradicts your allegations and that's something we can look at. Thus, muscle wasting affecting allegation of inability to stand and walk would have exemplified the situation sufficiently without adding muscle weakness to the mix.
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Post by Deleted on Mar 16, 2016 14:29:05 GMT -5
I agree that someone who alleges he or she can only stand or walk for a few minutes a day should have muscle wasting from lack of use as a logical outcome. The absence of muscle wasting is what I would formerly have called a factor that tends to decrease the credibility of the claimant's allegations of pain that prevents him or her from standing or walking more than a few minutes per day. I agree with you also that muscle weakness is another indicator of lack of use of the lower limbs, also consistent with inability to stand or walk more than a few minutes per day. I would formerly have called this a factor that tends to increase the credibility of the claimant's etc. I do not agree that the Ruling agrees with us. The Ruling, as I read it, is saying that the lack of muscle wasting causes the muscle weakness to be inconsistent with the claimant's statements regarding his or her pain. I believe the Ruling authors got confused or there were too many cooks and the example ended up a mishmash. The example did not have to include a sign supportive of the claimant's allegation - that simply confuses things. The POINT of the example is that sometimes your objective medical evidence directly contradicts your allegations and that's something we can look at. Thus, muscle wasting affecting allegation of inability to stand and walk would have exemplified the situation sufficiently without adding muscle weakness to the mix. I agree the ruling does not conclude that in this instance reduced muscle strength alone would support the claimant's allegations. It says "depending on other factors". Those could be a variety of things (physical or aquatic therapy, high protein diet to increase maintain muscle tone bulk ambulation aides, etc.)
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Post by Gaidin on Mar 16, 2016 14:30:51 GMT -5
I really hope that someday this thread is relevant to me because you guys are giving me a heck of an education. This is a great thread.
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Post by Deleted on Mar 16, 2016 14:35:09 GMT -5
I really hope that someday this thread is relevant to me because you guys are giving me a heck of an education. This is a great thread. Social security law is actually fun. Like Pixie said, think of it in terms of putting together a puzzle. I have no doubt it will be relevant to you soon!
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Post by Malice Aforethought on Mar 16, 2016 14:56:06 GMT -5
Implementation of this SSR has been delayed til 3/28.
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Post by montyburns on Mar 16, 2016 18:46:23 GMT -5
Well true to Pixie's predictions, this Ruling is a mess.
I got only a few paragraphs in before this gem revealed itself:
"In determining whether there is an underlying medically determinable impairment that could reasonably be expected to produce an individual’s symptoms, we do not consider whether the severity of an individual’s alleged symptoms is supported by the objective medical evidence. For example, if an individual has a medically determinable impairment established by a knee x-ray showing mild degenerative changes and he or she alleges extreme pain that limits his or her ability to stand and walk, we will find that individual has a medically determinable impairment that could reasonably be expected to produce the symptom of pain."
What? So we need an x-ray and an allegation of extreme pain, but we're not considering the severity of the symptoms? Then why use the word "extreme," which, in my world, indicates a degree of severity? Even before this, they muddle the water as to MDIs (and seemingly contradict the above example) by stating:
"We call the medical evidence that provides signs or laboratory findings objective medical evidence. We must have objective medical evidence from an acceptable medical source to establish the existence of a medically determinable impairment that could reasonably be expected to produce an individual’s alleged symptoms."
This seems to suggest both A) that you do not need laboratory findings or diagnostic testing (i.e. x-rays) to find a MDI, merely a clinical sign as vague and subjective as tenderness to establish an MDI (though if diagnosed by a MD/DO I would have called MDI before anyway, but many judges would not) and B) that whereas before only a diagnosis was required to be rendered by an AMS, now that AMS must perform the exam that finds the clinical sign? So if a MD reviews PT records that document lachman's, crepitus, tenderness and then diagnoses DJD, that is now not acceptable because the AMS did not perform the exam?
By the time I got to the example Tink and Prop discussed above, my head was already spinning, and I just read in "allegation of" before muscle weakness, which makes more sense. But no, as stated above, it seems like they are saying that one exam finding can negate another? Well you have weakness but not wasting so the weakness doesn't count? What? What they (hopefully) mean to say is that wasting would be more supportive/persuasive than mere weakness, which is true, but that's not what it says.
If they were going to get into specifics, I would have preferred they rank exam findings in terms of persuasiveness. Some exam findings cannot be faked (or not without lot of training or effort). Wasting, reflexes, spasms, swelling, erythema, crepitus, drop foot: these do not depend on the claimant saying "ouch," they are reproducible and observable. OTOH, tenderness, SLR, lachman, empty can, light touch sensation, ROM, etc., depend on the claimant reporting pain or possibly limiting themselves. In the former category the claimant's relative credibility does not matter as much as in the latter. Which isn't to say that you do not consider the claimant's ADLs, consistency of statements, or treatment history, but these are harder to assess because they might not have money for treatment or be otherwise adverse to it; symptoms/severity change, and therefore it is difficult to say that statements made months or years apart are actually inconsistent; and ADLs are problematic as they almost always depend on the claimant as the source of information.
IMO, they would have been better off just restating 96-7 and adding the one paragraph that really seems like it was the focus of the Ruling and ACUS report, namely:
"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, for a child with a title XVI disability claim, limit the child’s ability to function independently, appropriately, and effectively in an age-appropriate manner."
Oh well, I guess we'll see how the FIT template look in a few weeks.
Oh, and if you ever read the other prominent SSDI Blog (not sure Pixie et al are cool with naming names), but the cacophony of complaining about this ruling from the claimant's bar is hilarious. Many in the claimant's bar seem to have a knee jerk reaction that everything SSA/ODAR does is evil, and can't even appreciate the obvious gift that has been handed to them by this Ruling.
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Post by onepingonly on Mar 16, 2016 19:05:33 GMT -5
The artist formerly known as credibility is now called consistency with the objective medical evidence. Otherwise I see no material (comprehensible) departure from the existing agency policy.
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Post by Deleted on Mar 16, 2016 19:17:54 GMT -5
The artist formerly known as credibility is now called consistency with the objective medical evidence. Otherwise I see no material (comprehensible) departure from the existing agency policy. I agree. Actually it's consistent with the regs
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Post by onepingonly on Mar 16, 2016 19:44:53 GMT -5
I agree with your agreement, Tink, and I like your avatar. :-)
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Post by anderson on Mar 16, 2016 23:24:11 GMT -5
I believe the concept and use of the term credibility, and the requirements for its analysis, are pretty settled in case law. I don’t understand why the agency now feels compelled to re-cast this a different way.
The right way to discuss credibility is not a mystery: give specific, legitimate reasons for your credibility finding and tie it to evidence in the record. The wrong way: make an adverse finding without giving reasons, or without tying it to evidence in the record, Use inflammatory or boilerplate language.
Apparently some have not been done right, so we now have a new ruling—one that seems to obfuscate more than clarify. Making an assessment about “the intensity, persistence, and limiting effects of an individual’s symptoms” is a little murky. I suspect SSR 96-7p was designed to help with this by introducing the concept of credibility, which everyone understands, even if it has sometimes been misused.
SSR 16-3p has given us a couple of new reasons to consider for why the claimant might not be compliant or might not have sought more frequent treatment (the last three bullets at 81 FR 14170), including: “Due to a mental impairment…an individual may not be aware that he or she has a disorder that requires treatment”. If I were a claimant's rep, I might be pounding the table with this one if my client seldom or never sought mental health treatment.
There is a 300k pot-o-gold at the end of the disability line. To say that we cannot assess a claimant’s overall character or truthfulness (81 FR 14171) along that line seems a bit absurd.
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Post by mercury on Mar 17, 2016 2:54:39 GMT -5
Montyburns, my understanding is that we will no longer evaluate credibility at least at steps 1-2.
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Post by Deleted on Mar 17, 2016 4:58:51 GMT -5
Montyburns, my understanding is that we will no longer evaluate credibility at least at steps 1-2. How can you not assess credibility at step one? Someone says they are not engaging in SGA and their earnings information says otherwise. Absent error you have a credibility problem. I don't see how SSR16-3 applies to step 1 determinations. Step 1 determinations are not "symptom" based or related. Each step is a determination in and of itself.
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Post by bartleby on Mar 17, 2016 6:37:02 GMT -5
Tink, you noted, "All in all, decreased muscle strength is acceptable indicia of pain. I really think that's all it's saying". Not necessarily at all. Muscle wasting, i.e., atrophy, is an indication of nerve damage and has nothing to do with pain. A person paralyzed may have severe atrophy and little to any pain. This is the problem we run into. Medicine is an art and science, but diagnosis is more of an art and understanding and deriving a subjective symptom, especially pain, is next to impossible. The mere fact that the word subjective is utilized means credibility must be determined.. I would gladly send you my medical library, but I can't afford the postage.
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Post by Deleted on Mar 17, 2016 8:03:11 GMT -5
Tink, you noted, "All in all, decreased muscle strength is acceptable indicia of pain. I really think that's all it's saying". Not necessarily at all. Muscle wasting, i.e., atrophy, is an indication of nerve damage and has nothing to do with pain. A person paralyzed may have severe atrophy and little to any pain. This is the problem we run into. Medicine is an art and science, but diagnosis is more of an art and understanding and deriving a subjective symptom, especially pain, is next to impossible. The mere fact that the word subjective is utilized means credibility must be determined.. I would gladly send you my medical library, but I can't afford the postage. Muscle wasting/atrophy is caused by lack of muscle activity. The key to determining whether or not there is pain is to determine the cause of the lack of activity. In that instance where I said decreased muscle strength was an acceptable indicia of pain, I said that because the individual said he could not stand or walk for more than a few minutes a day due to pain. He didn't say due to nerve damage. Muscle atrophy/wasting is not always related to nerve damage. Nerve compression can be temporary i.e. Brain tumor. Atrophy can be caused by lack of physical activity, poor nutrition, infections and other causes. Severe untreated GERD can cause wasting atrophy- my husband had it and it had nothing to do with nerves. In some cases it can be reversed and in others not. The cause of the wasting/atrophy will determine whether pain is involved. And yes nerve damage will more often than not cause pain depending on which nerve is damaged. People most often have brain tumors and experience no pain at all. Remarkable isn't it
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Post by hopefalj on Mar 17, 2016 8:30:35 GMT -5
Muscle atrophy/wasting is objectively determined. Muscle strength really isn't. The docs have to rely on the patient to give best effort. As I said earlier, the more the bureaucrats write, clarify and explain, the more they muddle. Pix. I'll just do what I did as a writer (and you mentioned in another post)... let the AC tell me if I'm doing something wrong and adjust from there.
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Post by mercury on Mar 17, 2016 8:32:27 GMT -5
Montyburns, my understanding is that we will no longer evaluate credibility at least at steps 1-2. How can you not assess credibility at step one? Someone says they are not engaging in SGA and their earnings information says otherwise. Absent error you have a credibility problem. I don't see how SSR16-3 applies to step 1 determinations. Step 1 determinations are not "symptom" based or related. Each step is a determination in and of itself. Credibility should only matter and be evaluated when the nature and severity of the CL's impairments are at issue, ie past step 2. There is no credibility evaluation required at step 1 because it is a finding about SGA, not the nature and severity of CL's impairments.
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