GREY & GREY
NEW RULES REDUCE ACCESS TO SOCIAL SECURITY DISABILITY BENEFITS
The Social Security Administration (SSA) considers a wide range of factors in deciding whether someone should be approved for Social Security Disability benefits. In recent years, however, it has started to modify some of its rules in a way that makes it more difficult for applicants to qualify for benefits.
Age, education and work experience are important factors that SSA uses when evaluating a claim for disability benefits. Up until this year, it considered English-language proficiency along with those three factors in considering whether someone is employable. However, earlier this year SSA downgraded the significance of English-language proficiency as a factor in its decisions. SSA has estimated that this rule change will result in the denial of thousands of claims over the next ten years.
Rule changes like this stem from financial and political pressure, as well as a general misconception that many disability claimants are not truly disabled. The result is that it has become increasingly difficult to qualify for Social Security Disability benefits. Now, more than ever, it is important to have legal representation when applying for benefits.
Another recent rule change involved the “treating physician rule.” For many years, SSA gave the opinion of the claimant’s treating physician extra weight. If the treating physician reported that the claimant was disabled and his or her opinion was based on a continuous course of treatment, it would generally be accepted as the most credible evidence. This gave the claimant a good chance of being approved for benefits.
This is no longer the case. Beginning with all applications for Social Security Disability benefits after March 27, 2017, the Administrative Law Judges (ALJs) employed by SSA no longer give special weight to medical opinions of a claimant’s treating sources. As a result, a claimant’s application can be – and often is – denied based on a single examination by SSA’s consulting doctor. ALJs have also used the opinions of workers’ compensation insurance company independent medical examiners (IME’s) deny Social Security disability benefits.
To add insult to injury, the United States Attorney’s Office has defended SSA’s use of workers’ compensation IME reports to deny Social Security Disability benefits by arguing that these insurance-defense exams are truly “independent medical examinations performed “on behalf of the New York State Workers’ Compensation Board” – which is completely inaccurate.
Until recently, SSA required its ALJs to issue decisions that made specific findings about the credibility of the claimant’s testimony, taking a number of factors into consideration. However, SSA has now replaced the requirement for a credibility analysis with a rule that the ALJ must consider the testimony in the context of the remaining medical file. This makes it more important than ever to have an attorney who knows how to spot areas of possible inconsistency and to address or explain them to the ALJ at the hearing – rather than finding out for the first time in a decision denying benefits.
Yet another new SSA rule requires the claimant’s attorney to inform the ALJ about any additional medical evidence at least five days before the hearing. Any medical evidence that is not identified before the hearing will not be considered afterwards – something that can be the difference between approval and denial in a case.