Whether you’re a Social Security disability applicant in Maine, Massachusetts or New Hampshire, you will soon face new rules that govern the way in which your disability claim will be evaluated. While some of the rules will be helpful, there are some changes that may prove to be quite harmful to those who initiate a claim on or after March 27, 2017. We’ll attempt to provide you an overview of the new rules to you understand how these new rules may impact your particular case.
The Social Security rules and regulations have since 1991 reflected an understanding that the opinions of one’s treating physician will generally be provided what is deemed to be “controlling weight” assuming the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.” 20 C.F.R. §404.1527. Newly promulgated Social Security regulation 20 C.F.R. § 404.1520c specifically puts an end to the preference that has been given to treating source opinions, and will potentially create new concerns for Social Security lawyers such as ourselves practicing throughout ME, MA and NH. Instead, the new regulations make clear that a treating source may not be given more weight than the opinions of let’s say a consultative examiner who treats the claimant only on 1 occasion, or for that matter, the opinions of a medical consultant who has never examined you before (and is simply reviewing the written record).
The Social Security Administration (SSA) will now determine how persuasive a medical opinion is by utilizing as the most important factors for consideration: 1) how “supportable” the opinion is and 2) how “consistent” it is with other evidence in the record. While these are deemed to be the most significant factors for consideration, another factors for consideration is noted to be the 3) the relationship with the claimant, which includes within this factor for consideration, the following additional considerations: the length of the treatment relationship, the frequency of the examinations, the purpose of the treatment relationship, the extent of the treatment relationship (which would include the nature and extent of the examinations and testing that has been undertaken by the treatment provider) and the examining relationship (with the additional commentary that “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.” A 4th consideration is whether the medical opinion is from a provider who is in fact a specialist.
Some of the concerns that SSA reflects in their commentary appears to include the circumstance where an individual claimant is expressly undertaking a one time evaluation for purposes of supporting their Maine Social Security disability claim, or, in the instance where, for example, a primary care provider is treating the individual for their general health, but is providing little in the way of objective examination and treatment to justify opinions in a report that supports the claimant’s inability to undertake sufficient functioning necessary for a competitive work situation. The concern, however, with specifically providing an equal footing to consultative examiners who see the individual on 1 occasion is that they will, by definition of their one-time relationship, be in what is typically a much poorer position to judge over time how the individual is faring (as SSA’s concern is not with how one is faring at a one time visit, but day in and day out over a period of time). Thus, typically, a longstanding primary care physician, one would think, stands on a much better footing in terms of assessing and reporting how one might function on a regular and continuing basis. Even more concerning is the fact that medical consultants are only reviewing a written record and have not had an opportunity to obtain a history themselves or examine the claimant on even a single occasion. For the regulations to provide that their opinions may indeed be deemed as persuasive as one’s own treating physician depending on the supportability and consistency of the opinion with other evidence in the record is fraught with concern as to how particular disability examiners or administrative law judges (ALJ’s) may utilize the new regulations as part of their decision making process.
In part 2 of this blog, we’ll examine additional provisions of the new Medical Evidence Rule, some which will prove helpful to disability applicants who apply for benefits after March 27, 2017.
If you find yourself in the position of having been denied or in need of applying for Social Security disability benefits and you’re hoping to put your best foot forward, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 now so that we can discuss your options with you.