Social Security disability just got a bit easier – SDM forms not evidence in appeals
Social Security frequently has single decision makers (SDMs) complete forms describing what an individual can and cannot do in the workplace. These are very important case since the ultimate issue in a Social Security disability is whether an individual can still perform some type of work.
§404.906 describes the SDM process:
(2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see §404.1615). However, before an initial determination is made that a claimant is not disabled in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see §404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met.
The problem with a SDM deciding an individual’s limitations is that SDMs are not doctors, nor nurses, nor any type of medical professional. The SDM is often the Social Security case manager working in the Disability Determination Services (DDS) office.
The SDM often works with a medical expert to evaluate the extent of a claimant’s impairments and the resulting limitations. However, it is the SDM, not the medical professional, who often completes the limitations forms and decides whether an individual is disabled.
In cases with physical disabilities, the medical consultant does not need to sign the disability determination forms (typically a Physical RFC Form SSA-4374-BK). In cases with psychological impairments, the regulations a bit stricter requiring the SDM, “every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.” So, even in mental impairment cases, it is not an iron clad requirement that the medical consultant sign off on the claimant’s limitations.
I don’t want to go too far off on a tangent. The main point is that during the initial evaluation of disability claims under the SDM system, technicians and not doctors are deciding individual’s abilities and limitations. If you are still saying, “so what,” keep in mind that if the situation were reversed, a claimant’s representative providing the same form filled out by someone with no medical credentials in support of the claimant’s disability, would be laughable. It would neither be an “acceptable medical source,” nor an “other acceptable source.” See SSR 06-03p.
Ok. This simply means the situation is not equal. Social Security has to trust someone to decide an individual’s limitation and the issue of disability at the initial determination level. And, instead of a medical consultant, it can be a Social Security case manager with no medical credentials.
Question: Are these SMD determinations of abilities and limitations still valid as opinions at the hearing level?
Answer: NO!
Maine and New Hampshire Social Security disability attorney Gordon Gates has great posts (post 1, post 2) about the how much weight a SDMs Residual Functional Capacity can be given at the hearing level:
A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.
At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the “A” exhibits in the disability claim file, rather than with the medical evidence in the “F” exhibits.
For “prototype” states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.
The basis for this are two memoranda from the Chief Administrative Law Judge’s office at Social Security. On May 19, 2010, then Chief Administrative Law Judge Frank Cristuado issued a Memorandum stating the following:
SDMs often complete the Physical RFC Form, SSA-4374-BK, which is commonly completed by State agency medical consultants. Some ALJs and AAs treat the SDM RFC assessments as non-medical opinions and weigh them accordingly. However, this approach is inconsistent with agency policy clarified by POMS instruction DI 24510.050C, which states SDM form are not opinion evidence at the appeal levels. Thus, agency policy requires ALJs and AAs to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level. Emphasis added.
Not only was Chief Judge Christuado stating that SDM residual functional capacity statements were not medical opinions, he indicated that they were not opinion evidence at all. Therefore, NO EVIDENTIARY WEIGHT was to be given to SDM RFC forms!
Then on September 14, 2010, Acting Chief Administrative Law Judge John Costello issued a revised memo which strengthening this position:
Agency policy is that findings made by SDMs are not opinion evidence that Administrative Law Judge, (ALJ) or Attorney Adjudicator, (AA) should consider and address in their decisions. See, for example POMS DI 24510.050C, which states that SDM-completed forms are not opinion evidence at the appeal levels. SDM finding, are not “medical opinion” evidence since they do not come from medical source. However, agency policy is, that they are also not the opinions of non-medical sources, as described in SSR 06-3p.
Therefore, ALJs and Aas must not consider SDM RFC assessment forms and other findings as opinion evidence and must not evaluate them in their decisions.
…
When a case that contains a copy of an SDM’s SSA-4734-BK is appealed to the hearing level, the form will be located in the “F” section (Medical Records). At case workup SDMs form should be moved to the “A” section (Payment Documents/Decision,); any forms signed by MCs or PCs should be left in the “F” section.
If you worked your way to the end of this post, you may be wondering what does this mean for you?
If you have a RFC form in the file signed by a SDM (and there will be “SDM” after the signer’s name), the SDM’s findings as to the residual functional capacity (RFC) — what the individual can and cannot do — cannot be used as evidence at the hearing level. One way to bring this to the judge’s attention is to request that the SDM RFC form be moved to A section of the file, and provide a copy of the September 14, 2010 memo along with the request.
Many thanks to New York disability attorney Jeff Delott and Maine and New Hampshire Social Security disability attorney Gordon Gates.
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