By Jon Ressler, Attorney, Roose & Ressler
For well over 20 years, Social Security acknowledged that your treating doctor has unique insight in assessing your medically-caused functional limitations. Not anymore.
If you filed a Social Security disability application since March 27, 2017, the voice of your treating doctor is now just one among many. Social Security adopted new rules about how it will weigh opinions from medical sources. This change will make proving disability more difficult in many cases and is likely to result in increased denials for claimants with genuine disability.
Social Security has never unquestionably relied on treating doctor opinions. It has never given much weight to your doctor’s opinion that you are “disabled.” But Social Security would give weight to your doctor’s opinions about specific functional limitations, such as how much you could lift, how long you could sit and stand, or whether you could stay on task long enough to complete a task. Social Security would adopt your treating doctor’s opinion if it was well-supported by the medical evidence and was not inconsistent with other substantial evidence.
When your treating doctor’s opinion was compared against opinions from other medical sources, it was given deference because of the treating doctor’s special position, especially if there was a long treating relationship or if the doctor was a specialist. The underlying assumption was that your treating doctor knows you best, and her opinion would be accepted unless there were good reasons not to accept it.
This changed on March 27, 2017. Social Security’s new rules level the playing field between the opinions from your treating doctor, one-time examining doctors (often from an examination that Social Security paid for), and opinions of Social Security’s doctors who review your case but never see you. Now, Social Security says, “We will not defer or give any specific evidentiary weight” to your treating doctor’s opinion. Rather, all medical source opinions must be “considered” based on several factors but with the two most important being “supportability’’ (how well explained) and “consistency” (as compared to other medical and non-medical sources). Social Security no longer assumes that your treating doctor’s opinion is likely to be more accurate than doctors that they paid to give you a superficial 10-30-minute examination or the doctors they paid to review your record as quickly as possible (they have a lot of claims to review).”
This is a seismic change. The doctors that Social Security pays to examine claimants or review claimant’s records are likely to often win on the supportability factor. They are required as part of their job to try to support their opinions with an explanation. Treating doctors are not. They can’t bill insurance for time giving opinions (and more time explaining them) and often do it without any or minimal compensation. They tend to state their conclusions without spending time explaining their reasoning. This reality likely tips the playing field of competing medical source opinions against the treating doctor. Claimants and their legal representatives will need to work with their treating doctors to obtain opinions supported by well-reasoned explanations to overcome this obstacle.
It will take time to fully assess the impact of the new rules, as cases filed after March of last year have not yet made their way through the appeal process.