Monday, November 7, 2011

Taylor v. Commissioner of SSA

The Ninth Circuit published an important decision the end of October, Taylor v. CommissionerTaylor affirms the principal of Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir. 1993) that when the Appeals Council denies a request for review that included new and material evidence, the court will review the sufficiency of the decision in light of that evidence.  That isn't new but there was a battle brewing in the Ninth Circuit over whether Ramirez was good law or an anomaly where the government did not contest the issue.  Pamela Rymer had pressed the AC-evidence issue but never got any traction.  Her death in September leaves a question whether any other judge of the court will lean on that claim.  Taylor signals strongly that the battle is over. 

Taylor extends the treating physician rule to its logical step.  The Commissioner may not toss aside opinions of nurse practictioners or physcian's assistants without a germane articulation beyond the lack of "MD" status.  This makes sense.  In the world of scarce resources, many people including most particularly the poor cannot afford first class medical care.  Many see the NP or PA in the office and rarely see the MD.  Most conditions don't require the MD anyway, especially the chronically ill or injured on a maintenance program.  The decision in Taylor conforms with the Commissioner's views expressed in SSR 06-03p

People need access to care.  Whether the condition manifests itself as back pain, diabetes, depression, or some other manifestation of ill health, people need access.  Telling those that access care through NPs and PAs that they will lack the capacity to prove the nature and extent of their limitations before the SSA forces those individuals into a catch-22 that harms the public interest.  Without access to Medicare or Medi-Cal/Medicaid because of the receipt of care through expensive means translates later into a lack of care at all.  The vicious circle that wedding the disability program to the exclusive province of MDs and PhDs would end in less care for everyone.  Medical care is a scarce resource.  As a society, we need to marshall those resources in an intelligent and insightful manner that maximizes the good of individuals and society. 

Taylor pushes the envelope.  It should push the envelope.  The only loser from this decision are the minority of Administrative Law Judges that look for reasons to deny rather than looking for evidence of eligibility under the statutory and regulatory standards. 

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We used the  SCO and the aptitudes for dexterity  to show that there really are not a significant number of jobs for a person limited to lig...