Tuesday, April 26, 2011

The Treating Physician Rule

Some Administrative Law Judges think that the courts have gone too far in imposing a treating physician rule on them in the cases that I have litigated over the last 25 years.  The treating physician rule requires that the ALJ give more weight to the opinions of the treating physician than the opinions of one-time consultative examiners and more than the opinions of non-examining physicians.The logic behind the rule is that the treating physician has a greater opportunity to know the person and has the intent to either cure the problem or relieve the patient of the ill effects of the disease or injury.  Murray v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1983).

The case law is equally clear that in order to determine whether the ALJ gave greater weight to the opinions of the treating physician, the ALJ must give specific and legitimate reasons for rejecting the opinions of the treating physician where the opinions of other physicians disagree.  Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The ALJ will complain that the weight afforded the treating physician and the obligation to give reasons for rejecting the opinions of the treating physician hamper his ability to make decisions according to how he views the evidence.  

That ALJ ignores the very real proposition that the Commissioner of Social Security promises claimants for disability benefits that the Social Security Administration will give controlling weight to the opinions of the treating physician where they are well-supported and "not inconsistent" with other evidence in the record.  20 C.F.R. §§404.1527(d)(2); 416.927(d)(2).  The double negative of the "not inconsistent" standard is clearly intentional to mean something that falls between "consistent" and "inconsistent."  The "not inconsistent" standard tolerates a degree of deviation to mean that some disagreement will not run afoul of the standard.  

Even the the treating physician is not entitled to controlling weight, the Commissioner promises claimants for disability benefits that the Social Security Administration will still reject the opinions of the treating physician for "good reasons."  20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). It is apparent to me that a good reason would have to be both specific and legitimate.  If the record does not contain evidence that contradicts the opinions of the treating physician, then a good reason would have to be clear and convincing.  

The Commissioner also demands that the ALJ give consideration and state the weight given to the opinions of the non-examining physicians.   20 C.F.R. §§404.1527(f); 416.927(f).  So in those two instances, the Commissioner binds the hands of the wayward ALJ to give the evidence proper consideration.  

The only real disagreement ... the Ninth Circuit does not allow the ALJ to simply disregard favorable evidence that comes form examining physicians.  There, the courts require the ALJ to give at least specific and legitimate reasons for rejecting those opinions that help the claimant.  The regulations are silent on how to treat its own hired guns.  For now, the public deserves to know that the terms of the social contract do not give the random ALJ carte blanch to deny cases for arbitrary reasons but to give good reasons, whether those reasons be specific and legitimate or clear and convincing. 

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