Treating Physician Rule

 
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Questions that arise after the receipt of a denial many times center on the client wondering why “my treating doctor’s opinion appears to have been disregarded or found to lack credibility?”.

 This becomes a difficult question to answer because of what is known as the 'treating physicians rule'.

This rule under Social Security case law and regulations.” in its most basic sense, provides that the decision-maker is supposed to accept the opinion of the claimant’s treating physicians unless there is a good reason not to, i.e. treating physician rule.

 A treating physician is the claimant’s own physician or psychologist who has provided medical treatment or evaluation and who has or has had an on-going relationship with the claimant.  Generally an on-going relationship exists when the medical evidence shows that the claimant has been seen or sees his physician or psychologist what would be considered consistent with accepted medical practice for the type of treatment and evaluation required for the particular medical condition. 20 CFR § 1527

The Eighth Circuit has stated that the opinion of a treating source is entitled to great weight unless unsupported by medically acceptable clinical and diagnostic data and can be rejected if it is not.

Morse v Shalala, 16 F.3d 865 ( 8^th Cir. 1994) “The treating physician has the best opportunity to observe and evaluate a claimant's condition. This court has on repeated occasions emphasized that the treating physician's evidence must be given great weight, with deference to the physician's findings over an examining physician or consultant. See Thompson v. Sullivan, 957 F 2d 611, 614 (8^th Cir. 1992); Henderson v. Sullivan, 930 F 2d 19,21 (8^th Cir. 1991);Hancock v. Secretary of the Dep't of Health, Educ. And Welfare, 603 F. 2d 739,740 (8^th Cir. 1979)...Unless there is medical evidence that contradicts or refutes the physician's ;medical conclusion, the Secretary is bound to treat the treating physician's diagnosis and conclusion as substantial evidence. Bastien v. Califano, 572 F.2d 908,912 (2n Cir. 1978);...”

“...the ALJ is not a medical expert ad cannot by his legal expertise discount and reject the medical findings and conclusions of the physician. His role is not to make a personal estimate of the claimant's impairment but to base his findings on whether the credible evidence before him sustains or does not sustain the claimant's asserted disability...”

Grant v Bowen, 930 F.2d 633 (8^th Cir. 1991) “The opinion of a treating physician is entitled to great weight “unless it is unsupported by medically acceptable clinical or diagnostic data.” Kirby v. Sullivan, 923 F.2d 1323, 1328 (8^th cir. 1991); see also ward v. Heckler, 786 F.2d 844, 846 (8^th Cir. 1986)”
 
Singh v. Apfel, 222 F.3d 448 (8^th Cir. 2000) “ A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8^th cir. 1991). A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See Keley v. Callahan, 133 F.3d 583, 589 (8^th Cir. 1998). ...The Commissioner is encouraged to give more weight to the opinion of a specialist about a medical issues related to his or her area of specialty than to the opinion of a source who is not a “always give good reasons” for the particular weight given to a treating physician's evaluation. 20 C.F.R. § 404.1527(d)(2).”

Even if the treating physician's opinion is not entitled to controlling weight, in most cases it is still entitled to significant weight. Cox v. Barnhart, 345 F.3d 606 (8^th Cir. 2003). 

The treating physician rule began to change in the 8^th circuit with President George W. Bush six appointments to the Circuit Court.

In Davidson v. Astrue, 501 F.3d 987(8^th Cir, 2007) is a case in which the Court gave its stamp of approval to an ALJ’s decision to discount the residual functional capacity opinions of a treating doctor, even though the ALJ had never seen the report.warnings to the ALJ not to substitute his opinion for that of the medical professional

We then had Travis v Astrue, 477 F.3d 1037 (8^th Cir. Heino v. Astrue, 578 F.3d 873 (8^th Cir. 2009)

Look at Perkins v. Astrue, 648 F.3d 892 (8^th Cir. 2011).  As I interpret the case dispite prior warning to the ALJ not to substitute his opinion for that of the treating physician, the court says that the ALJ’ s interpretation of the medical evidence is more persuasive then the opinion of the author of the records.

Clearly the law that had directed greater weight to a treating or examining physician's information has been weakened.   

I think the rule is still strong in the proper case with a friendly ALJ.  I have run into problems with certain ALJs who seem to be looking for reasons not to award benefits.

If in the Judge’s opinion the treating physician’s opinion is inconsistent with other evidence or is not well supported, it will not be given controlling weight.  In making this determination the Judge is given a great deal of discretion under the regulation and case law.

There are issues that are reserves for the Judge to decide. Such issues include: Opinions that you are disabled. The determination or decision about whether you meet the statutory definition of disability. Therefore a statement by a medical source that you are “disabled” or “unable to work” does not mean that the judge will be required to adopt that as a finding. (2) Other opinions on issues reserved to the Commissioner. The decision on whether or not your impairment equals or meets the Listing of Impairments; if you have the residual functional capacity to return to competitive employment; and in reality the nature and severity of your impairment.

All of the discussion on controlling weight, breaks down to a subjective decision by the fact finder.  Even if the physician’s opinion is well supported in the medical information if the Judge can articulate facts in the case that are inconsistent with other substantial evidence in the file, the physician’s opinion will no longer be given controlling weight. (Consider Sparks v. Barnhart, 434 F. Supp. 2d 1128 (ND Ala. 2006))
For example, the treating physician put functional limitations upon claimant, i.e. distance can walk, difficulty bend, stoop etc. but scattered through the file, are statements by claimant indicating at that times he has exceeded restrictions.  That could be ruled to be a substantial inconsistency.

In many cases, it is the foregoing type of situation that I have seen occur. A claimant treating long enough with a physician will have good days and bad, will attempt to do things he or she should not try, struggle against limitations. In many cases, the claimant will tell the doctor I did this or that even though I should not have. The fact that on one of several occasions, or on that one occasion the judge focuses on, may in that judge's discretion be sufficient to rule the claimant capable of work. A claimant may have restrictions in place, but tells the judge, I grocery shop once a week, I wash cloths once a week, I watch the grand kids once a week, it a struggle but I do these activities. Again a judge may determine that the physician is not credible, because the claimant is testifying to what the judge believes are activities in excess of the restrictions.

There is also the issue of the client who relied for treatment with a GP who has given an opinion on claimant's disability, back pain, neck pain, etc. what weight is given to the medical expert,  a board certified orthopedic physician who states a contrary opinion?

Sometimes it almost feels that having evidence from a treating physician who has had years of contact with the claimant is almost a determent.  You get the feeling that the Judge has a feeling that the doctor is trying to help his patient with overly broad findings, etc.

Such a feeling is not without notice. In Black & Decker v. Nord, 123 Sup. Ct. 1965 (2003) the U.S. Supreme Court dealt with the issue of extending the treating physician rule to private pension plans. The Court held that the “treating physician rule” is not applicable to such private benefit plans . In dicta, the court recognized the incentives for plan consultants to deny benefits, but countered that treating physicians may be inclined to favor a disability determination in close cases.  Id. at 1971.

The commons sense approach of the treating physician rule to expedite the proceedings and get disability benefits to people who have worked the majority of their life, but now are unemployed by disability has not been so simple in its application. As can be gleaned from the few cases cited above, it is important to have the assistance of an attorney when dealing with these issues.

For more information you can see my web site at sjbeseres.com

1 See 20 C.F.R. §404.1527(d)(2),Farris v. Secretary of Health and Human Services, 773 F.2d 85, 90 (6th Cir. 1985)

2 (SSR 06-03P – chiropractors, physician assistants, nurse practitioners, audiologists, and therapists are not acceptable medical sources and are treated similarly to an acceptable medical source except that in the first instance – the distinction between acceptable medical sources and other health care providers  who are not acceptable medical sources is necessary for three reasons: (1) evidence is needed from acceptable medical source to establish the existence of a medically determinable impairment under the regulations (§404.1513(a)). (2) only an acceptable medical source can give a medical opinion (§ 404.1527(a)(2)) and (3) only acceptable medical sources can be considered treating sources (§ 404.1502) whose opinion may be entitled to controlling weight §404.1527(d))

3Other jurisdictions have similar holdings. Example, Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985);Hurst v. Schewiker, 725 F.2d 53, 55 (6th Cir. 1984);Stamper v. Harris, 650 F.2d 108, 111 (6th Cir. 1981);Branham v. Gardner, 383 F.2d 614, 634 (6th Cir. 1967); Lewis v. Callahan, 125 F.3d 1436 (11^th Cir. 1997)

4Some issues are reserved to the Secretary opinions by medical sources on such issues will not be given special weight.  A treating physician’s opinion that claimant is disabled or unable are issues reserved to the Secretary, issues of whether or not impairments meet or equal a listing and on claimant’s residual functional capacity, the Judge will not accord the treating physician’s opinion with any special significance —the listings issue  opinions upon the listings which are written in medical language, and the issue of ‘meeting’ a listing seem to be issues a medically trained person should have the advantage.