The following appeared in the in April 2018 Maryland State Bar Association Bar Bulletin.
By: Devan M. Wang and Richard P. Neuworth
Social Security Disability Insurance and Supplemental Security Income (“SSI”), the two federal disability benefit programs, saw a lot of changes in 2017. These changes are important for applicants and their representatives and impact both the application process and the way Social Security evaluates applications for benefits.
The Five Day Rule:
The most significant change is the new “Five Day Rule” which went into effect on May 1, 2017. Under the Five Day Rule, applicants at the hearing level, or their representatives, must submit or notify the Administrative Law Judge (“ALJ”) about all evidence at least five business days prior to their scheduled hearing.
The Five Day Rule was enacted in conjunction with a new rule requiring that the ALJ send a hearing notice to applicants and their representative at least 75 days before a scheduled hearing. Accordingly, applicants and their representatives must plan and begin gathering all evidence necessary for their hearing as early as possible, ideally, as soon as the notice of hearing is received. In order to satisfy the new rule, applicants, or their representative, should notify the ALJ about efforts to obtain all evidence that will be submitted at the hearing and all evidence not obtained within five business days. The failure to timely notify the ALJ with this rule could result in crucial evidence being excluded.
Representatives have additional duties besides this rule. The Social Security Regulations, adopted in 2017 (SSR 17-4p) also require representatives to make good faith efforts to “act with reasonable promptness” to obtain information or evidence that must be submitted. This requirement means that representatives should not wait until the five day deadline to request, submit, or notify the ALJ about evidence. Representatives who repeatedly violate the Five Day Rule may be suspended or prohibited from further practice.
New Mental Health Listings:
Applicants and their representatives also need to be aware that the Social Security Administration updated the mental health listings as of January 17, 2017.
Social Security listings are impairments for each major body system, including mental health, that are considered severe enough to prevent an individual from doing any gainful activity.
While the changes to mental health listings are too numerous to cover, there a few major changes that applicants and their representatives need to be aware of.
First, the terminology of the mental health listings was updated to reflect the current language found in the DSM-5.
Second, there were changes to the listing numbers, and requirements. Listings 12.11 – Neurodevelopmental disorders; 12.13 - Eating disorders; and 12.15 - Trauma and stressor related disorders (e.g. PTSD) were added, while listing 12.09 for substance addiction disorders was removed. Further, an applicant can no longer be found disabled under listing 12.05 without meeting the functional limitations in Paragraph B of the listing. Previously, a valid Full Scale IQ either under 60 or an IQ between 60-70 with another severe impairment was enough to meet listing 12.05.
The four areas of functioning considered in Paragraph B of the listings were changed. Previously, Social Security considered functional limitations in the following categories: (1) Activities Of Daily Living; (2) Social Functioning; (3) Concentration, Persistence, and Pace; and (4) Episodes Of Decompensation. Now, the four areas of functioning in Paragraph B are: (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; and (4) Adapt or manage oneself. Although activities of daily living are no longer a separate category, they are used as a indicator for the four areas of functioning.
Treating Physician Rule:
The Administration no longer follows the treating physician rule for all cases filed on or after March 27, 2017. This new policy means that the opinions of an applicant’s own doctor are no longer given special weight. Rather, all opinion evidence is given the same weight, even opinions from consultative examiners or other medical sources who only met with the applicant once.
Second, the definition of Accepted Medical Sources was broadened to include Physician’s Assistants and Advanced Practice Registered Nurses. This change is important because applicants increasingly see Physician’s Assistants and Advanced Practice Registered Nurses as their primary care physician, rather that medical doctors.
The changes detailed above had a significant impact of the Social Security disability application program and underscore the importance of applicants obtaining competent representation early in the disability application process.
For more information or for assistance with a Social Security Disability Insurance issue, contact Lebau & Neuworth at 888-456-2529 or lebauneuworth.com/contact-us.