On March 28, 2016, Social Security Ruling 16-3p became effective and SSR 96-7p was rescinded. Both rulings address how the Agency evaluated symptoms and as a whole the new ruling includes much of the same language as the prior one. The biggest difference between the two rulings is that the term ‘credibility’ has been removed. SSA attributes the change to a recommendation from the Administrative Conference of the United States (ACUS). SSA had requested ACUS conduct a study into the evaluation of symptoms and adopted their recommendation to remove the term because it is not used in the Social Security Regulation. As a result, SSR 16-3p states:
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. (Emphasis added)
So how will SSA evaluate symptoms? The Agency continues to use the twostep process:
- Determine if there is an underlying impairment that could reasonably be expected to cause the symptom(s). If yes:
- Evaluate intensity and persistence of symptom(s) to determine limits on ability to perform work-related activities (adults) or function independently, appropriately an effectively in an age appropriate manner (Title XVI child)
This is not a change from 96-7p; however, 16-3 states “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.” This seems to lower the threshold requirement for “reasonably be expected”.
For the evaluation of symptom intensity and persistence, multiple factors are considered: objective medical evidence; other evidence including the claimant, medical sources, and nonmedical sources. In addition, the evaluation will include the seven factors set forth in the CFR; these are the same seven factors from 96-7p that were used to evaluate credibility. So the process remains the same but with different language. However, 16-3p appears to go a step further by stating that if the claimant’s statement are consistent with each other, the objective evidence and the other evidence in the file, “we will determine that an individual’s symptoms are more likely to reduce his or her capacities” for work or age appropriate activities. Even better, the ruling notes that inconsistencies in the claimant’s statements “does not necessarily mean they are inaccurate” because symptoms vary.
The Agency still considers whether the claimant is receiving ongoing treatment and following prescribed treatment. 16-3p states “We will not find an individual’s symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” In 96-7, there was a list of 6 reasons why the claimant may not be seeking consistent treatment; 16-3 lists these reasons but goes further by expanding on one reason and add three new ones:
- An individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau (expansion from 96-7)
- Due to various limitations (such as language or mental limitations), an individual may not understand the appropriate treatment for or the need for consistent treatment of his or her impairment.
- Due to a mental impairment (for example, individuals with mental impairments that affect judgment, reality testing, or orientation), an individual may not be aware that he or she has a disorder that requires treatment.
- A child may disregard the level and frequency of treatment needed to maintain or improve functioning because it interferes with his or her participation in activities typical of other children his or her age without impairments.
The new ruling goes on to say there may be other reasons for the claimant not pursing treatment, as well as reasons to explain inconsistencies in the claimant’s statement about symptoms. In both instances, the ruling says, the Agency “will explain how we considered the individual’s reasons in our evaluation of the individual’s symptoms.”
Another concept that remains unchanged from 96-7p to 16-3p is the language that states in adjudicating the case, the evaluation of symptoms cannot be done with a single, conclusory statement such as ‘the statement about his/her symptoms have been considered’ or ‘the symptoms are not supported/not consistent.’ Yet, how many times does a State Agency evaluation contain such language? It is not likely that most State Agencies will change this aspect of their case processing, and that is good thing for representatives. Because this regulation (and SSR 966p) require that the opinions of State Agency Medical Consultants be considered by the ALJ, one way to attack the State Agency opinion, and argue why it should be given little if any weight, is to point out the evaluation of symptoms was done improperly. Just remember to say the State Agency assessment is flawed per SSR 16-3p, not 96-7p!
By Sandy Fambrough
Sandy Fambrough starting her 25 year career in the disability field as a Disability Examiner in Louisiana. She has represented numerous claimants at all levels of the administrative process in almost every state, including hearings in almost 30 states. She is one of the pilot project participants for ARS and was one of the first non-attorney representatives to receive direct pay from SSA. From 2009 through 2014, she served as a member of the NADR Board of Directors and was awarded the Al Gonzales Distinguished Service Award at the 2014 Annual Conference. In May 2016, she joined the firm of Chermol & Fishman, LLC as a Senior Disability Representative.