Governors Seek to Help Those with Disabilities Get State Jobs

A recent article on looks at how states are helping to place job seekers with disabilities in state jobs. With only 36 percent of Americans with disabilities holding a job, governors of several states are working to change that through state government employment. 

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U.S. Department of Education Renegotiating Disability Agreements

A recent post by Disability Scoop looks at the U.S. Department of Education quietly re-negotiating hundreds of disability-related civil rights agreements with schools. The agency has recently reworked more than 200 agreements with schools. Officials are taking requests from school districts and universities to reconsider resolved agreements on a case-by-case basis.

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Disability Rights TN is Hiring

Disability Rights Tennessee, a nonprofit organization which provides services and advocacy for individuals with disabilities, is hiring multiple positions in Nashville and Memphis, including multiple attorney positions. Visit the Disability Rights website or the TBA's Joblink to get full details on the openings.
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A Wellness Tip from the Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day).  This will enable you to have focused time for given tasks without constant interruption and distraction.
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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    Court Orders Aetna to Reinstate Long Term Disability Benefits

    In a recent blog, disability lawyers Dell & Schaefer discussed Marie West v. Aetna Life Insurance Company, in which Marie West sued Aetna Life Insurance Company over a denied claim for long term disability after two spinal infusions. The court concluded that “the evidence in the record clearly demonstrates that West is entitled to benefits.” It ordered Aetna “to pay back-due benefits plus interest and to reinstate her benefits.” The court also determined West was entitled to “reasonable attorneys’ fees and costs.” Learn more about this case here.

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    State-Mandated Cap Limits Award in Loss of Four Limbs Case

    Bob Kraft of P.I.S.S.D questions the state-mandated cap of $750K in a case where a woman lost four limbs in a medical malpractice case. Seven justices of the Wisconsin’s Supreme Court will decide this week.

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    Next Week: Topgolf CLE — Estate Planning Tee-off

    The TBA Estate Planning & Probate Section will host the Topgolf CLE: Estate Planning Tee-off on June 26. The program will feature 2.5 hours of CLE programming, focused on information relevant to new attorneys interested in Estate Planning and lawyers who desire to add this area to their practice.
    The CLE package includes breakfast, lunch, plus two hours of Topgolf after the presentations. Don’t miss this unique opportunity to build your practice knowledge and fine-tune your drive game, all in one day! 
    When: Tuesday, June 26, 9 a.m., CDT
    Where: Topgolf Nashville, 500 Cowan Street, Nashville, TN, 37207
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    Noteworthy Legislation Affecting Animal Law

    The Senate Judiciary Committee on Monday will consider SB2556, which allows a tenant to be criminally convicted if the tenant pretends to have a disability-related need for an assistance animal to obtain an exception from a lease policy that prohibits pets, allowing the landlord to hold the tenant in breach of the rental agreement. The Senate Commerce and Labor Committee-passed amendment can be viewed here. The amendment as passed in the House, HB2439, can be viewed here.
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    10 Essential Documents for Your Practice

    Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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    Tennessee House Approves Bill Seeking Work Requirements for Some TennCare Recipients

    A bill seeking to implement work requirements for "able-bodied" TennCare recipients was overwhelmingly approved by the state House on Monday, reports The Tennessean. The proposal, sponsored by House Speaker Beth Harwell, R-Nashville, directs the state Department of Finance and Administration to seek a federal waiver to impose work requirements for able-bodied, working-age TennCare recipients without dependent children under 6 years old.
    As the chamber discussed the bill Monday, several Democrats unsuccessfully introduced amendments seeking to change the measure. One amendment, sponsored by House Minority Leader and gubernatorial candidate Craig Fitzhugh, D-Ripley, would have directed the state to submit a waiver to expand Medicaid, however, this amendment was voted down. "The problem with this bill as a whole," said Rep. Mike Stewart, D-Nashville, "is that poor mothers will have less and less access to health care. This movement to take health care away from Tennesseans will not stop with these disadvantaged individuals.”
    Gov. Bill Haslam has voiced support for the bill, telling the Knoxville Chamber, “We have Tennessee Reconnect. Anybody can go back to school for free… and then actually we’re really short on workforce folks now.”
    “We have thousands of unmet job needs in Tennessee right now. So this is an environment where people can go fairly easily and meet those qualifications," Haslam said.
    The House voted 72-23 in favor of the measure. The Senate is expected to take up its version of the bill in the coming days.

    –Here is a recent amendment to SB1728 /HB1551

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    2018 Disability Law Forum

    Join us for the 2018 Disability Law Forum. Get updates from the 6th Circuit Social Security Law and new regulations are necessary for today's practice in disability law. This year's program offers these topics along with ethics and best practices in vocational expert testimony. You will also hear from a panel of resource representatives to help you identify assistance for your clients. Judge David Ettinger will address on the record issues and Judge Jane Stranch will speak on Sixth Circuit Social Security law. Make your plans to join us today!


    When: April 13

    Time: 9:30 a.m. – 3:30 p.m.

    Where: TN Bar Center

                221 4th Ave N

                Nashville, TN 37219

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    TBA Gears Up for 2018 Mock Trial Tournament

    The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

    We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

    To volunteer for this event, click here.

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    Don't Forget: Winter CLE Blast Tomorrow!

    Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 


    • Flexible to your schedule
    • Up to 11 Hours of CLE
    • Ethics Credits
    • Compliance CLE
    • Live Credit Hours

    When: Feb. 21, registration begins at 7 a.m., CST

    Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219


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    CLE on Special Needs Trusts Planned for Nov. 16

    A new CLE on Special Needs Trusts will be held Nov. 16 at the Tennessee Bar Center in Nashville. This program will navigate through the tax code to maximize advantages for Qualified Disability Trusts and discuss ethical considerations of using a trust to qualify for Medicaid. There are many duties and ethical considerations associated with serving as a trustee – learn about these issues in this specialized program. 
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    CLE on Special Needs Trusts

    A new CLE on Special Needs Trusts will be held at the Tennessee Bar Center on Nov. 16. This program will navigate you through the tax code to maximize advantages for Qualified Disability Trusts and discuss ethical considerations of using a trust to qualify for Medicaid. There are many duties and ethical considerations associated with serving as a trustee – learn about these issues in this specialized program.

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    Letter from the Chair

    As we start the new TBA year, I wanted to reach out to Disability Law Section Members to encourage you to become more involved in Section activities and to share any ideas you have on how we can make Section Membership more beneficial. One important way to contribute is to volunteer to write articles or blurbs for our Section Connect or shortened newsletter, which is published as needed.   
    We are also collecting information about how the “5 business day rule” is being applied at your SS hearing offices. We hope to share the collective data in our Connects. 
    If you are interested in writing or requesting an article contact Beth Bates
    In addition to our quarterly newsletter, the Section plans to produce a fact sheet regarding expedited processing in SS disability cases for some veterans. The section will also will be holding its annual CLE on in the spring, save the date for March, 13, 2018. Please feel free to suggest topics for the annual CLE. Some of our Executive Council will be volunteering to answer disability law related questions for Tennessee’s as a section pro bono project. By the way, we need more council members. Please volunteer. You are not required to participate in the pro bono. That is optional.
    I look forward to serving as chair of the Disability Law Section this year and welcome your feedback. You can reach me by email at or on my direct line (731) 426-1313, if you have ideas or suggestions for our Section.
    Best Regards,
    Beth S. Bates
    Chair, Disability Law Section
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    Diabetic Student Sues Collierville Schools for Revoking Transfer

    The family of a former student is suing Collierville Schools for revoking her transfer, shortly after she acquired a service dog and requested an Individualized Education Program to support her Type I diabetes, the Commercial Appeal reports. The lawsuit accuses the district of violating the Americans with Disabilities Act and the Rehabilitation Act of 1973, and alleges that she was discriminated against.
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    Disability Rights Tennessee Hiring Legal Director

    Disability Rights Tennessee, a nonprofit organization dedicated to protecting the rights of Tennesseans with disabilities, is seeking a legal director. The legal director leads, manages and supports legal personnel who provide direct client representation and serves as lead counsel or co-counsel in major litigation including class action lawsuits. The position also develops, maintains and disseminates legal information to provide support to a legal team and assures staff knowledge remains up-to-date. Interested candidates should submit a letter of interest, a  resume and a recent pleading or motion related to applicant’s involvement in systemic and individual litigation to
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    Item of Interest

    Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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    Disability Rights TN Conducting Survey on Needs and Resources

    Disability Rights Tennessee is conducting a survey to gather information from people with disabilities, family members, service providers and professionals to help shape the work of the organization. Attorneys working in the disability rights field are asked to contribute their thoughts. Others are asked to share the survey with friends and colleagues in the disability rights field, so an accurate picture of the needs of those with disabilities can be compiled. The deadline to respond is July 15. For more information contact DRT at (800) 342-1660 or

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    Turn Your Expertise into a Magazine Article

    It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

    How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

    If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at

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    The Infamous Five Business Day Rule

    In another example of the Social Security Administration (SSA) acting with amazing haste, it published its final “program uniformity” regulations on December 16, 2017.

    The July 2016 Notice of Proposed Rule Making proposed, among other things, closing the record five business days before a scheduled Administrative Law Judge (ALJ) hearing. The Empire Justice Center, a number of other advocacy organizations, and members of Congress voiced opposition to SSA’s proposal. SSA, however, did not withdraw the five-day requirement.

    SSA’s ostensible goal in promulgating these changes is to “ensure national consistency in our policy and procedures and improve accuracy and efficiency in our administrative review process.” 81 Fed. Reg. 09087. The changes will bring the rest of the nation in accord with practices in place in the Boston region (Region 1) for the past ten years. In implementing these new regulations, Part 405 of 20 C.F.R., which governed Region 1, has been removed.

    Sections 404.935 & 416.1435 of 20 C.F.R. (Submitting evidence prior to the hearing before an administrative law judge) have been significantly revised. Claimants and their representatives must submit evidence, or inform SSA about it, at least five business days from the hearing, unless an exception applies. Unless an exception applies, the ALJ may decline to consider or obtain the evidence.

    In response to comments, SSA revised the proposed regulation to clarify the circumstances described that would constitute good cause for a claimant or representative to submit evidence after the five-day deadline are not exclusive examples. The examples at 20 C.F.R. §§ 404.935(b)(3) & 416.1335(b)(3) include:

    • serious illness,
    • death or serious illness in the immediate family,
    • important records were destroyed or damaged by fire or other accidental cause, or
    • the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than five business days prior to the hearing.

    In response to comments, SSA removed the phrase “through no fault of your own” from the last example “to reduce the evidentiary burden on claimants who are unable to produce evidence.” 81 Fed. Reg. 90988. A claimant’s physical, mental, educational, or linguistic limitation(s) preventing him or her from informing SSA about or submitting the evidence earlier could also constitute good cause. 20 C.F.R. §§ 404.935(b)(2) & 416.1435(b)(2).

    In its commentary, SSA sought to reassure the public that these changes will not relieve adjudicators of their responsibility to make decisions based on the evidence presented at hearings. SSA argued the changes will promote both efficiency and fairness, citing experience in the Boston region. In response to many concerns raised by commenters, SSA reiterated the ability of ALJs to find exceptions to the requirement. It also claimed that responding to requests to submit evidence pursuant to one of the exceptions did not cause extra work in the Boston region. 81 Fed. Reg. 90989. In response to comments about “variances” in how ALJs in the Boston region applied similar rules, SSA promises to provide additional training to adjudicators and staff about applying the exceptions. 81 Fed. Reg. 90992.

    SSA made several other changes to the proposed rule in response to comments. It amended 20 C.F.R. §§ 404.939 & 416.1439, 404.949 & 416.1449, and 404.950(d)(2) & 416.950(d)(2) to include exceptions to the deadlines for objecting to issues at a hearing, presenting written statements, and requesting subpoenas. Note that subpoenas must be requested at least ten business days before the hearing date, as opposed to the five-day time-frame in the current regulation. The five-day requirement does apply to objections to the issues and written statements. But SSA clarified that the five-day requirement only applies to pre-hearing written statements, not to post-hearing statements. 81 Fed. Reg. 90991. And SSA states that the exceptions could be relied upon to submit rebuttal evidence if an ALJ introduces new evidence at or after the hearing. Id.

    SSA agreed with comments that hearing notices should provide at least 75 days before a hearing rather than the 60 days in the proposed rule. 20 C.F.R. §§ 404.938 & 416.1438.

    The new regulations also affect the Appeals Council. It will consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability the evidence would change the outcome of the hearing decision. 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5). The Appeals Council regulations have also been amended to provide the Appeals Council will only consider new evidence if the claimant shows good cause for not informing SSA or submitting it in accordance with 20 C.F.R. §§ 404.935 & 416.1435. See 20 C.F.R. §§ 404.970(b) & 416.1470(b). The good cause exceptions are repeated in the Appeals Council regulation. 

    SSA withdrew its proposed rules allowing the Appeals Council to conduct a hearing to develop evidence. SSA disagreed with commenters who argued there was no legal basis for this proposed change, but nonetheless decided to remove the proposed rule. According to SSA, the Appeals Council will continue to exercise its authority to develop evidence in accordance with 20 C.F.R. §§ 404.976(b) & 416.1446(b). 81 Fed. Reg. 90989.

    Several other sections have been reorganized or revised to cross reference the new regulations.

    These new regulations will undoubtedly create new burdens and hassles for advocates already struggling to get evidence in a timely fashion. Advocates should keep in mind, however, that informing the ALJ of new evidence within the time frame should be sufficient to comply with the new requirements. SSA states in its commentary: “In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline.” 81 Fed. Reg. 90990. Advocates will thus need to make sure they notify the ALJ in writing at least five days before the hearing that they anticipate receiving and submitting new evidence.

    What is not clear, however, from the regulations and commentary is what procedures will be followed if an ALJ refuses to accept evidence proffered or finds it is not material. Section 404.951(b) (Contents of the official record) refers to, inter alia, “any additional evidence or written statements that the administrative law judge admits into the record under §§ 404.929 and 404.935.” (See also 20 C.F.R. § 416.1451(b)). Does evidence an ALJ excludes under the five-day requirement or rules as not material become part of the official record? Query whether uploading the evidence into ERE will secure it as part of the record? Advocates will need to make any disputes about the admission of evidence clear on the record to preserve the issue for appeal.

    The new rules became effective on January 17, 2017. According to the notice, however, “compliance is not required until May 1, 2017.” 

    - Reprinted with the permission of the Empire Justice Center, with authors Catherine (Kate) Callery & Louise Tarantino.

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    More Bad News – Treating Physician Rule is No More

    In seemingly record time, the Social Security Administration’s (SSA) Notice of Proposed Rule Making (NPRM) - Revisions to Rules Regarding the Evaluation of Medical Evidence - published in the Federal Register on September 9, 2016, became final on January 18, 2017. These new regulations redefine several key terms related to evidence and revise the list of acceptable medical sources to include advanced practice registered nurses and physician assistants. But most significantly, under the new regulations SSA will no longer give a specific weight (i.e., controlling weight) to any medical opinions, including from the claimant’s own healthcare providers.

    SSA’s professed goal in revising the rules is “to ensure that they reflect modern health delivery and are easier to understand and use.” 82 Fed. Reg. 5844. They will become effective on March 27, 2017, but will only apply to cases filed on or after March 27th. A revised version of the current treating physician regulations, which incorporates some aspects of the now rescinded Social Security Ruling (SSR) 06-3p, will govern pending cases filed prior to that date. See 20 C.F.R. §§ 404.1527(f) & 416.927(f).

    The proposed regulations were outlined in the October 2016 edition of the Disability Law News. In response to the 383 comments received from individual citizens, claimants’ representatives, members of Congress, professional organizations, and advocacy groups, SSA made some revisions to the proposed rules, including adding physician assistants in addition to nurse practitioners in the list of acceptable medical sources (AMS). A summary of the differences between the proposed and final rules is at 82 Fed. Reg. 5844-5845. But ultimately, the most significant proposed changes to the way evidence from treating sources is considered were retained.

    Primacy of “treating source” opinions eliminated

    In fact, the term “treating source” has been removed from the regulations, replaced by “your medical source.” Relying heavily on the 2013 findings of the Administrative Conference of the United States (ACUS), SSA cited the burdensome number of findings required by adjudicators under the current rules, conflicting federal court perspectives, and the changing nature of the primary healthcare system as justification for the proposed changes. According to SSA, changes in how people receive primary care have undermined the presumption that a claimant’s sole treating physician has the longitudinal knowledge and unique perspective objective medical evidence alone cannot provide.

    SSA’s response to public comments “recogni[zed] that an individual’s own medical source may have a unique perspective of an individual’s impairments.” 82 Fed. Reg. 5857. And SSA admitted that under 20 C.F.R. §§ 404.1520c & 416.920c, the “final rules also continue to allow an adjudicator to consider an individual’s own medical source’s medical opinion to be the most persuasive medical opinion if it is both supported by relevant objective medical evidence and the source’s explanation, and is consistent with other evidence” 82 Fed. Reg. 5853. But the value of opinions from treating sources is no longer acknowledged in the regulations themselves.

    Weighing of evidence replaced by consideration of “persuasiveness”

    Rather than weighing medical evidence from various sources, with special recognition of the intrinsic value of evidence from treating sources, SSA will now “consider” the “persuasiveness” of opinions from all medical sources. According to the preamble to the NPRM, SSA believed its current rules used “weigh” and “weight” in several confusing ways. The new regulations use the term “persuasiveness” instead of “weight,” and “consider” instead of “weigh. ” See Preamble to the September 2016 NPRM at 81 Fed. Reg. 62574. According to SSA in response to comments, the current regulations did not specify specific weights, other than “controlling.” As a result, adjudicators used a variety of terms, such as significant, great, little, more, and less. SSA hopes to avoid this confusion by having adjudicators focus on how persuasive they find opinions. 82. Fed. Reg. 5858. But is unclear how adjudicators, in rendering a “minimum level of articulation” required by the new regulations, will define or describe “persuasive.”

    Opinions of all medical sources will be considered

    On a positive note, in response to comments, SSA revised the proposed rules to reflect that “all medical sources” will include medical sources that are not acceptable medical sources. Per 20 C.F.R. §§ 404.1502 & 416.902, the definition of “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law…” According to SSA’s response to comments, the definition includes licensed mental health care providers. 82 Fed. Reg. 5847. So, for example, although SSA refused to include Licensed Clinical Social Workers in its final definition of “acceptable medical sources,” adjudicators will be required to consider the persuasiveness of their opinions under new 20 C.F.R. §§ 404.1520c & 416.920c. Objective evidence from non AMSs still can not be used to establish a “medically determinable impairment” (MDI) under 20 C.F.R. §§ 404.921 & 416.1521; their opinions as to functional limitations, however, will be “considered,” but not accorded any extra weight. This definition would presumably apply to physical therapists and chiropractors as well. (SSA claims this change will also allow it to select an individual’s own medical source, regardless of AMS status, as a preferred source to conduct consultative examinations. 82 Fed. Reg. 5847.)

    Factors for considering “persuasiveness”

    How will SSA consider the “persuasiveness” of all these medical opinions, including those from a claimant’s own medical sources, as well as prior administrative opinions from SSA’s medical and psychological consultants (MCs & PCs)? It will use several factors, with “relationship with the claimant” subsidiary to what SSA deems as the two most important factors: supportability and consistency. See 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The factors, in order of importance, are: 1) supportability; 2) consistency; 3) relationship with the claimant, combining the current examining and treatment factors; 4) specialization; and 5) other factors, which include familiarity with other evidence in the claim or an understanding of disability policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c) & 416.920c(c). SSA admitted determining “consistency” might be challenging in certain claims, but refused to clarify what consistency means beyond acknowledging its use in the regulations is “the same as the plain language and common definition.” 82 Fed. Reg. 5854. According to SSA, it “includes consideration of factors such as whether the evidence conflicts with other evidence from other medical sources and whether it contains an internal conflict with evidence from the same medical source.” Id.

    But SSA also acknowledged “that the symptom severity of some impairments may fluctuate over time, and we will consider the evidence in the claim that may reflect on this as part of the consistency factor as well.” 82 Fed. Reg. 5854. SSA also acknowledged “that evidence from a medical source who has a longstanding relationship with a claimant may contain some inconsistencies over time due to fluctuations in the severity of an individual's impairments.” SSA plans to include the extent to which such inconsistencies should be taken into consideration in its training to adjudicators. Id.

    The proposed regulations had listed familiarity with the entire record and understanding of SSA policy as separate factors. The final version of the regulations combines them as “other factors,” so as not to appear that SSA favors SSA’s medical and psychological consultants (MCs & PCs) opinions. 82 Fed. Reg. 5857. SSA also revised the proposed rules to recognize that new evidence submitted after the MC or PC has rendered an opinion might make the opinion “more or less persuasive.” 20 C.F.R. §§ 404.1520c(c)(5) & 416.920c(c)(5).

    Of note, all of the factors except relationship specifically refer to persuasiveness. For example, the more supportable and consistent an opinion is, the more

    persuasive it will be. Or the opinion of a specialist may be more persuasive. In contrast, the factors under the relationship category are simply listed, and include length of relations, frequency of examinations, purpose and extent of treatment relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3) & 416.920c(c)(3).

    How will factors be “articulated”?

    How the factors are “considered” will be “articulated” by the adjudicator. What do “consider” and “articulate” mean? In response to a comment, SSA declined to replace “consider” with “evaluate.” According to SSA, “consider” is easily distinguishable from “articulate.” “Adoption of the term ‘evaluate’ could imply a need to provide written analysis, which is not what we intend.” 82 Fed. Reg. 5855. “Articulate,” on the other hand, does seem to imply a written analysis. 20 C.F.R. §§ 404.1520c(b) & 416.920c(b) requires adjudicators “to articulate in our determination or decision how persuasive we find all the opinions.” SSA revised 20 C.F.R. §§ 404.1520c(b)(1) & 416.920c(b)(1) to provide that adjudicators will articulate how they considered medical opinions, rather than merely consider them. It “expect[s] that the articulation requirements in these final rules will allow a subsequent reviewer or a reviewing court to trace the path of an adjudicator's reasoning.” 82 Fed. Reg. 5858.

    But SSA left intact the provisos that adjudicators are not required to articulate individually how they considered each medical opinion when a medical source provides multiple opinions. 20 C.F.R. §§ 404.920c(b)(1) & 416.1520c(b)(2). Nor are adjudicators required to explain how they considered the other factors besides consistency and supportability when they articulate their consideration of medical opinions. 20 C.F.R. §§ 1520c(b)(2) & 416.920c(b)(2). Those other factors, including relationship with claimant, must be articulated only if there are two or more conflicting but equally persuasive medical findings on the same issue that are equally well-supported and consistent. 20 C.F.R. §§ 404.1520c(b)(3) & 416.920c(b)(3). According to SSA, “it is not administratively feasible for us to articulate how we considered all of the factors for all of the medical opinions and prior administrative findings in all claims.” 82 Fed. Reg. 5856.

    Adjudicators will also be relieved of articulating how evidence from nonmedical sources was considered. Adjudicators will have discretion as whether they even have to discuss such opinions. 20 C.F.R. §§ 404.1520c(d) & 416.920c(d). Nonmedical sources include the claimant, educational personnel, social welfare agency personnel, and family members, caregivers, friend, neighbors, employers, and clergy. 20 C.F.R. §§ 404.1502 & 416.902. SSA did acknowledge in response to comments, however, that these nonmedical source “can provide helpful longitudinal evidence about how an impairment affects a person's functional abilities and limitations on a daily basis,” especially in claims for child disability. 82 Fed. Reg. 5851. It refused, however, to give controlling or other weight to opinions from teachers. 82 Fed. Reg. 5858. But as noted above, claims filed before March 27, 2017, will be reviewed under the revised 20 C.F.R. §§ 404.1527(f) & 416.927(f). The new subsection incorporated the factors from the now rescinded SSR 06-3p for evaluating evidence from nonmedical sources.

    Additions to List of Acceptable Medical Sources
    In addition to these major changes on how opinion evidence is evaluated, the regulations revise and reorganize other existing regulations and Social Security Rulings (SSRs). As noted above, SSA has revised the rules for determining acceptable medical sources, now including nurse practitioners (Licensed Advance Practice Registered Nurses) and physician assistants, as well as audiologists. 20 C.F.R. §§ 404.1502 & 416.902.

    Objective Medical Evidence

    Objective medical evidence now includes signs or laboratory findings, or both, rather than the current signs and laboratory findings. 20 C.F.R. §§ 404.1502 & 416.902; 20 C.F.R. §§ 404.1513(a)(1) & 416,913(a)(2). Of note, symptoms, diagnoses, and prognoses are not considered opinion evidence, but moved to the category of “other medical evidence.” 20 C.F.R. §§ 404.1513(a)(3) & 416.913(a)(3). Administrative findings of fact and medical opinions from state agency medical and psychological consultants, other than ultimate determinations as to disability, are considered “prior administrative medical findings.” 20 C.F.R. §§ 404.1513(a)(4) & 416.913(a)(4). SSA revised its proposed regulations to clarify that this term refers only to prior findings in a current claim. “These final rules do not affect our current policies about res judicata” effects of findings from earlier, separate claims. 82 Fed. Reg. 5852. Prior findings from current claims are considered under the same factors used to consider other medical opinions discussed above. New 20 C.F.R. §§ 404.1513a(b) & 416.913a(b) provide that evidence from state agency medical or psychological consultants must be considered by Administrative Law Judges (ALJ) under the opinion regulations discussed above, but ALJs are not required to adopt any prior administrative findings. See also 20 C.F.R. §§ 404.1520b(c)(2) & 416.920b(c)(2).

    Decisions of Other Governmental Agencies

    The new regulations rescind the provisions of SSR 06-3p related to decisions by other agencies. Decisions by other governmental agencies and nongovernmental entities are specifically categorized as “evidence that is inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c) & 416.920b(c). See also 20 C.F.R. §§404.1504 & 416.904. SSA addressed this issue extensively in the Preamble to the September Notice of Proposed Rule Making (NPRM) and in discussing the comments. Of note, two commenter questioned whether such decisions would have to be submitted under the “all evidence rules” at 20 C.F.R. §§ 404.1512(a) & 416.912(a). SSA “clarified” this issue, responding that the decision “may not relate to whether or not an individual is blind or disabled under our rules.” Adjudicators nevertheless will consider the relevant underlying supporting evidence. 82 Fed. Reg. 5849.

    Other Inherently Non-persuasive Evidence

    Other evidence inherently neither valuable nor persuasive includes statement reserved to the Commissioner. 20 C.F.R. §§ 404.1520b(c)(3) & 416.920b(c)(3). This includes statements that (i) a claimant is disabled or unable to work, (ii) has a severe impairment, (iii) satisfies the durational requirement, or (iv) meets or equals a listing; (v) define residual functional capacity (RFC) in SSA programmatic terms, (vi) RFC prevents the claimant from returning to past relevant work, or (vii) claimant does nor does not meet the requirements of the Medical-Vocational Guidelines.

    Medical Determinable Impairments (MDI)

    An MDI can only be established by objective medical evidence from an acceptable medical source (AMS). 20 C.F.R. §§ 404.1521 & 416.921. SSA has “clarified” that a medically determinable impairment (MDI) cannot be established by symptoms, diagnoses, or medical opinions. According to SSA in its Preamble to the NPRM, a diagnosis is not always reliable “because sometimes medical sources diagnose individuals without using objective medical evidence.” 81 Fed. Reg. 62567.

    Medical and Psychological Consultants

    SSA amended several rules to conform to the Balanced Budget Amendment (BBA), which requires that medical consultants who review claims must be licensed physicians or psychologists.

    SSRs Rescinded

    SSRs 96 -2p, 96-5p, 96-6p, and 06-3p have been rescinded. But SSA plans to publish a new SSR outlining how ALJs and the Appeals Council would obtain evidence to make medical equivalency findings.

    Effective Date

    As noted above, the regulations become effective on March 27, 2017. [As of the date of publication of this newsletter, it does not appear these regulations will be affected by the new administration’s freeze on new regulations.] But the regulations will only apply to claims filed on or after March 27th, so it may be some time before advocates begin to see their effect at the hearing level.

    The current regulations will continue to apply to cases in the administrative pipeline and in U.S. District Court. SSA has, however, amended the current treating source regulations with a change that presumably will also take effect on March 27th but will apply to cases in the pipeline. It has added 20 C.F.R. §§ 404.1527(f) & 416.927(f). According to SSA, these sections incorporate the provisions of SSR 06-3p, which will be rescinded on March 27th. 82 Fed. Reg 5844. The new sections will govern the evaluation of evidence from non-acceptable medical sources and non-medical sources in pending claims. This category will include nurse practitioners and physician assistants, who will be considered “acceptable medical sources” only in claims filed on or after March 27, 2017.

    - Reprinted with the permission of the Empire Justice Center, with authors Catherine (Kate) Callery & Louise Tarantino.

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