SSA NEWEST REGULATORY CHANGE IS THE MOST HARMFUL

Posted on March 28th, 2017

This rule was issued on January 8, 2017 and it pertains to applications filed on or after March 27, 2017.

The topic of this rule is so significant that it is strongly advised that those claimants intending to apply now or soon, SSA will no longer have a “treating physician rule”.  Under the treating physician rule, SSA was required to give greater adjudicative weight, if not controlling weight, to treating physicians seen over a longer period of time.  This was incredibly favorable to claimants in the SSA system.  This is different than in a workers compensation claim where the insurance carrier can send you to a doctor of its own choosing.  In the ERISA context, for disability insurance claims, the insurers are allowed to give greater weight to their own physicians or an Independent medical Exam (I.M.E.) and are not obligated to be persuaded by treating physicians no matter how long they have been treating the claimant or how much more expertise they might have.  Some years ago, the United States Supreme Court ruled unanimously that the treating physician rule does not apply to ERISA claims.

SSA, for claims on or after March 27, 2017, will focus on the “persuasiveness of medical evidence”, based on supportability and consistence, not the source of the opinion.  If evidence from 2 or more sources is equally supported and consistent, only then can SSA consider the length of the treatment relationship, frequency of exams, purpose of the treatment relationship, specialization of the medical source, and other factors such as understanding SSA policy and familiarity with the record.  The latter two will likely be used by SSA to prefer its consultative examiners, or non-examining review doctors that merely look at the file but never examine the claimant.

Historically, SSA promulgated the treating physician rule out of its own generosity, etc., but as a response to a multitude of federal court decisions that imposed their own court-ordered treating physician rules.  SSA’s response was intended to make these rules uniform nationally, not varying from judicial circuit to another, and in a form less helpful to claimants than court-ordered rules.  The courts might be able to reinstate their treating physician rules, which might or might not be more helpful that SSA’s rule about to be abolished.  One should NOT count on this as it will take years before claims filed on or after March 27, 2017, to reach the federal circuit court level.  Further, if President Trump is more successful in appointing federal court judges that share his philosophy, there might never be a treating physician rule.

This regulation also contains one minimal change beneficial to claimants who receive their medical care from Physician Assistants, Advance Registered Nurse Practitioners, (ARNPs), etc… These and certain other medical sources will become an “acceptable medical source”.  The distinction of an acceptable medical source allows that person to diagnose the existence of a “medically determinable impairment”.  Both acceptable and unacceptable sources are allowed to comment as to a claimant’s ability to work.  This minor change does not even remotely offset the loss of the treating physician rule.