Friday, November 11, 2016

The Treating Physician Rule Will Die, Now What?

The treating physician rule will likely die according to the Notice of Proposed Rule Making (NPRM).  I believe in the treating physician rule and argued for its extension to disability plans covered by ERISA.  See Black & Decker Disability Plan v. Nord.  Writing for the unanimous Court, Justice Ginsburg explained that plan administrators "may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician."  As to ERISA claims, the treating physician rule died that day.  

The Commissioner of Social Security's NPRM suggests that the agency discard the treating physician rule:
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. 
20 CFR § 404.1520c(a).  (20 CFR § 416.920c is the SSI counterpart).  Before the claimant's bar runs off screaming that the sky is falling, they ought to examine the paragraphs directed by the predicted demise of the treating physician rule.  

First things first, the burden to articulate the weight given to the evidence remains, for the most part.  20 CFR § 404.1520c(b)(1).  Gone is the obnoxious practice of simply selecting between two equally weighted opinions.  20 CFR § 404.1520c(b)(3).  Retained and expanded is the obligation to articulate how the agency addressed non-accepted medical source opinion evidence.  Chiropractors, nurse practitioners, and other non-doctors just got a regulatory boost in status.  

The Commissioner retains the weight for supportability and consistency.  20 CFR § 404.1520c(c)(1) and (2).  The Commissioner keeps as a weight factor the relationship to the claimant -- examining better than non-examining; length of the relationship; frequency of examinations; purpose of the treatment relationship; and extent of the treatment relationship.  20 CFR § 404.1520c(c)(3).  In sub-paragraphs (i) through (v), the Commissioner gives back with the left hand what the right hand had taken away.  All things being equal in terms of supportability and consistency with the record, the longitudinal treatment relationship will cause SSA to give more weight to the opinions of the treating physician than that of an examining or non-examining physician.  The label of treating physician rule has died but the commonsense notion that the treating physician knows the patient better than the one-time consultative examiner or the non-examiner survives.  

The practical effect of the change will amount to not much.  A lack of support in the record and a lack of consistency with the record have long provided SSA with adequate grounds to reject the opinions of the treating physician.  Those cases are legion.  But the tie goes to the runner -- the treating physician -- and will continue to favor the claimant.  When the examining physician opines that the claimant can stand or walk for six hours and the treating physician states that four hours is more likely and sustainable for a particular patient, the treating physician opinion should prevail under current law and under the NPRM.  

To answer your question -- no, I am not concerned about the death of the treating physician rule.  I experienced that pain long ago and it didn't kill me.  The regulations as drafted keep the key elements of the doctrine alive and discharged to thrive.  Long live the weight given to a treating source when it is supported and consistent.  

1 comment:

  1. In light of the new regulations, I wonder if courts will need to alter their standards on review regarding the ALJ's evaluation of medical opinions. Will ALJs still need to provide specific and legitimate reasons for evaluating the supportability and consistency of medical opinions?