New Ruling Emphasizes “Other Source” Evidence

October 1, 2006

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

The Social Security Administration (SSA) has issued a new Social Security Ruling (SSR 06-03p) entitled “Considering Opinions and Other Evidence From Sources Who Are Not ‘Acceptable Medical Sources’ in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies.”  The Ruling was effective on publication.  71 Fed. Reg. 45593 (August 9, 2006) (see www.ssa.gov).

This new ruling may be most helpful in those cases where the therapist, based on weekly visits, can provide a detailed description and supportive opinion, while the MD who is there only for the occasional chat and medication management may not provide the best report.  Or a nurse practitioner (NP) does the medication management so there is no “acceptable medical source” (i.e., MD or PhD) to sign a functional capacities evaluation. This SSR may well open doors long barred for many of our clients who obtain health care in clinic settings where treatment by an MD is rare.

The Commissioner, in “clarifying” agency policy, now says that SSA must consider opinions from these sources.  Some of these sources were other medical sources, while others may be non-medical, such as lay witnesses.  Their opinions will not be given binding effect, but they may be entitled to significant weight; they have to be considered applying the same criteria that are supposed to be applied in assessing an opinion from an acceptable medical source. This SSR differentiates among “other medical sources,” “non-medical sources” who have dealt with the claimant in a professional capacity, and “non-medical sources” who have dealt with the claimant but not in a professional capacity.

The nurse practitioner suddenly gets a lot more credit:  “The fact that a medical opinion is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an ‘acceptable medical source’ because, as we previously indicated in the preamble to our regulations at 65 FR 34955, dated June 1, 2000, ‘acceptable medical sources’ ‘are the most qualified health care professionals.’  However, depending on the particular facts in a case, and after applying the factors for weighing opinion evidence, an opinion from a medical source who is not an ‘acceptable medical source’ may outweigh the opinion of an ‘acceptable medical source,’ including the medical opinion of a treating source.  For example, it may be appropriate to give more weight to the opinion of a medical source who is not an ‘acceptable medical source’ if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion.  Giving more weight to the opinion from a medical source who is not an ‘acceptable medical source’ than to the opinion from a treating source does not conflict with the treating source rules in 20 CFR 404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p, ‘Titles II and XVI: Giving Controlling Weight To Treating Source Medical Opinions.’”

Other non medical sources are also recognized: “An opinion from a ‘non-medical source’ who has seen the claimant in his or her professional capacity [e.g., a teacher, counselor or social worker] may, under certain circumstances, properly be determined to outweigh the opinion from a medical source, including a treating source …if the ‘non-medical source’ has seen the individual more often and has greater knowledge of the individual’s functioning over time and if the opinion of the ‘non-medical source’ has better supporting evidence and is more consistent with the evidence as a whole.”

Lay witness opinion, however, is not given such power to sway the decision-maker:  “Since there is a requirement to consider all relevant evidence in an individual’s case record, the case record should reflect the consideration of opinions from medical sources who are not ‘acceptable medical sources’ and from ‘non-medical sources’ who have seen the claimant in their professional capacity.  Although there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the case. In addition, when an adjudicator determines that an opinion from such a source is entitled to greater weight than a medical opinion from a treating source, the adjudicator must explain the reasons . . .”

Part II of the SSR deals with the weight to be accorded disability determinations by other agencies.  The Commissioner’s regulation at 20 C.F.R. §§ 404.1504, 416.904 provides that: “A decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based on its rules and is not our decision about whether you are disabled or blind.  We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency that you are disabled or blind is not binding on us.”  A number of courts, however, have held that a disability determination by other governmental agencies, even though not binding, is entitled to great weight.  Otherwise, the Commissioner would be free to ignore, for example, a Medicaid determination of disability that was based on the same statutory standard as a Social Security disability claim.

While the Commissioner continues to assert in the new SSR that SSA is not bound by such findings, the ALJ or other decision-makers must now deal expressly with evidence from such determinations. The SSR actually says that “evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered,” but only admonishes adjudicators that they “should explain the consideration given to these decisions in the notice of decision for hearing cases and in the case record for initial and reconsideration cases.”

That last distinction gets express treatment in Part I, in which the Commissioner notes without discussing that there is a difference between what a decision-maker must “consider,” and what the decision-maker must explain in the decision.  Unfortunately, courts – and advocates - may continue to be frustrated by being unable to decipher what an adjudicator considered when the adjudicator has not explained how the factor was applied in reaching the decision.

Remember that since the Ruling is a clarification of the agency’s previous policy, it can and should be used to argue that greater weight should have been given to “other source” evidence – even if the decision was made before the effective date of this Ruling