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The Abolition of the Treating Physician Rule

Many news outlets are reporting about the recent changes in Social Security’s rules. Reporters interviewed other Disability attorneys, who sounded worried. News reports were couched in scary language. The panic was obvious.

Funny thing is, here at Keller & Keller LLP, we aren’t worried.

Background

The Social Security Administration added a rule which emphasized your doctor’s opinion back in the mid-1990’s. Federal Courts inspired this change, since many Federal Judges were baffled at the way SSA would ignore a claimant’s doctor in favor of doctors (under contract with the Agency) who did one-time exams or just reviewed claims. Many “one-time” examinations (called Consultative Examinations or CE’s) lasted 10 minutes and occurred with a physician who had no records to review. As part of a reform package, SSA elevated your physician above other doctors and required their judges to automatically adopt your doctor’s findings if her opinion was consistent.

SSA can change its rules, but it cannot change the habits of its judges. This is the hard part of changing a bureaucratic culture. So, while SSA changed its rules, its judges still did not trust claimant’s doctors, nor did they like a rule which took the decision-making out of their hands.

Administrative Law Judges

ALJ’s for two decades have attempted numerous ways to ignore or attack the Treating Physician Rule, and attorneys like the ones here at Keller & Keller, LLP have sued them in Federal Court and won new hearings for our clients.

Present

As recently as 2014-2015, SSA was, nationally, losing almost half the cases they tried to defend in Federal Court  (Keller & Keller’s winning percentage was much better than 50%). But, all these losses in Federal Court meant something to SSA. First, Federal Courts do not like having this many Disability cases on their dockets. At a conference I attended, a Magistrate Judge here in Indianapolis noted their total number of Social Security cases exploded by more than 70% since 2010. Secondly, SSA does not want the Federal Courts telling them what their rules mean. Thirdly, remands (as they’re called) take up a lot of staff work and are complicated. SSA’s answer to the problem was to change the rule again. Apparently, if you can’t win the game, you change the rules.

The new rule says that SSA judges will not automatically give any extra consideration to any medical opinion.

Here at Keller & Keller, LLP, we knew about the rule change and, honestly, to us it doesn’t mean that much. Most SSA judges already ignored the rule in order to “get out from under” the treating physician opinion, so we were used to that. Nonetheless, SSA continues to demand its judges evaluate every medical and non-medical opinion. If ALJ’s have to evaluate every opinion and we have completed forms consistent with the records, then our client usually wins. Additionally, the Treating Physician Rule had little effect on our lawsuits, since we usually argue the ALJ rejected opinions for barely coherent reasons. And, for the most part, Courts agree with us.

There are other, possibly even, more troubling aspects to this change. In my next post, I’ll discuss those. But, the takeaway for anyone contemplating applying for Disability is that SSA is trying to make winning your case harder AND we can help you. We know the rules and will fight for you.

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