Is the Treating Physician Rule Dead for Cases Filed After March 27, 2017?

The Commissioner amended the regulations on the weighing of medical opinion evidence for cases in process (sec. 404.1527) and for cases filed after March 27, 2017 (sec. 404.1520c).  Some have suggested that the treating physician rule is dead, that the new regulations treat all opinion evidence in one basket, and that the sky is falling.  When we look at 404.1520c, we will not find a controlling weight regulation.  But that does not put the treating physician, the consultative examiner, and the non-examining physicians on the same plane.  We start with paragraph (c)(3), the weight factors as they pertain to dividing the sources. 

(c) Factors. We will consider the following factors when we consider the medical opinion(s) and prior administrative medical finding(s) in your case:

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(3) Relationship with the claimant. This factor combines consideration of the issues in paragraphs (c)(3)(i) through (v) of this section.

(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).

(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).

(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).

(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).

(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.

We can start at the bottom.  The factor of examining relationship weighs against the state agency physician and the testifying medical expert.  They have no examining relationship.  

Subparagraphs (i) - (iv) give weight to a treating source.  These are the regulatory weight factors. They do not apply to the examining or non-examining physician.  All things being equal in terms of specialty and supportability, the tie goes to the treating physician under (c)(3).  

The claimant has a gait disturbance and some lower extremity weakness.  The CE and DDS opine that the person can stand/walk for four hours in a day.  The treating physician offers the opinion of two hours.  The person is 53 and the amount of standing/walking makes the difference in the case.  The representative should argue that under (c)(3) the recognition by all the physicians that some limitation in standing/walking applies requires more weight to the longer treatment relationship, the more frequent doctor-patient interaction, the purpose of the visits (to cure and relieve), and the extent of the relationship (advice, therapy, medication, and referrals), as well as the repeated examinations all point weight to the treating physician.  

Is the treating physician opinion different?  Yes.  Is the treating physician rule and the extra weight to the treating physician dead?  No.  It is still breathing under (c)(3).