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Will Proposed Regulations Diminish the Treating Physician Rule?


Current regulations have adopted the "treating physician rule" and provide that medical evidence from treating sources will generally be given more weight or, if certain requirements are met, can even be controlling. 20 C.F.R.§§ 404.1527(d) and 416.927(d). SSA has proposed regulations that would change "How We Collect and Consider Evidence and Disability" that could diminish the role and weight of medical evidence from treating physicians. 76 Fed. Reg. 20282 (Apr. 12, 2011). Comments are due by June 13, 2011. The most significant change in this notice of proposed rulemaking (NPRM) is to remove the current requirement to recontact medical sources (i.e., treating sources).

Current rule. 20 C.F.R. §§ 404.1512(e) and 416.912(e) require SSA to first recontact medical sources to resolve a "conflict or ambiguity" in the evidence:

(e)(1) We will first recontact your physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.

SSA "may" not recontact the source if "we know from past experience that the source either cannot or will not provide the necessary findings." Id. at §§ 404.1512(e)(2) and 416.912(e)(2)

The proposed rule. The NPRM would delete 20 C.F.R. §§ 404.1512(e) and 416.912(e). Those sections would be revised and added to new sections404.1520b and 416. 920b: "How we consider evidence."

The new sections provide the following. After reviewing the evidence obtained, the adjudicator may not be able to make findings "because the evidence in your case file is insufficient or inconsistent." Evidence is "insufficient" when it does not contain all the information needed to make a decision. Evidence is "inconsistent" when it conflicts with other evidence, is internally inconsistent, is ambiguous, or is not based on medically acceptable clinical or laboratory techniques. The NPRM would allow SSA, i.e., the adjudicator, to determine the best way to resolve the inconsistency or insufficiency. The preface says that SSA "expects" the adjudicator to first recontact the medical source. But, unlike the current regulations, this is not required and is in the discretion of the adjudicator. If left to their discretion, will the adjudicators in many cases simply turn to non-treating sources?

The NPRM preface says that based on "our adjudicative experience," there are other, more effective, ways to obtain the additional information… It is sometimes inefficient and ineffective to require our adjudicators to first contact your medical source(s)." (emphasis added). The examples given are when the treating source is not a specialist or when "issues revealed in the medical evidence are better clarified by someone other than your medical source(s). The preface goes on to say that the requirement to recontact medical sources first can lead to delay in adjudication.

Concerns raised by the NPRM. The NPRM gives more discretion to adjudicators. Given their time constraints, it seems that in many situations they will opt for a route other than recontacting the treating source. Will this lead to the lessening of the role of the regulations dealing with the weight of medical opinion evidence? We are concerned that it will.

  1. More discretion for adjudicators. Currently, adjudicators are required to recontact treating sources to resolve ambiguity or conflicts in the evidence they provide. The NPRM would delete that requirement. The NPRM preface states that SSA "expects" adjudicators would continue to recontact the claimant's medical sources "when we believe such recontact is the most effective and efficient way to resolve an inconsistency or insufficiency." 76 Fed. Reg. at 20283. However, realistically, given this level of discretion, how often will they recontact the treating sources? Or will they just find it just easier and less of a hassle to schedule a consultative examination?

  2. Fewer cases where the treating source opinion is controlling. Under current regulations (which would not be changed by the NPRM), a Treating source's medical opinion will be given "controlling" weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record…" 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Under the current regulations, the adjudicator is required to recontact treating sources to resolve inconsistencies or gaps in the evidence. Under the NPRM, there is no such requirement. As a result, would the NPRM lead to fewer cases where the treating source opinion is controlling since there could be fewer cases where those opinions are "well-supported" or where evidence is nor inconsistent with other substantial evidence of record?

  3. Fewer cases where treating source opinion is given greater weight. As an example of when it is "inefficient and ineffective" to first recontact the treating source, the NPRM points to a treating source who does not specialize in the claimant's specific impairment and where more evidence of severity is needed, thus leading to the scheduling of a consultative examination. Does this allow adjudicators to get around the evidence weighing factor in the current regulations for non-controlling opinions from treating sources?

    The current regulations for weighing medical evidence provide that, if the treating source opinion is not controlling, it will still be given more weight than a non-treating source when the treating source has "reasonable knowledge" of the claimant's impairment(s). 20 C.F.R. §§ 404.1527(d)(2)(ii) and 416.927(d)(2)(ii). Even though a treating source is not a specialist, he or she may still have "reasonable knowledge" of the impairment given the length of the treating relationship and the extent of the medical evidence provided.

    The current regulations for weighing medical evidence also provide that "supportability" is a factor in deciding whether to give the treating source opinion more weight. 20 C.F.R. §§ 404.1527(d)(3) and 416.927(d)(3). "The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion." Under the NPRM, if the treating source evidence has gaps, will the adjudicator simply not recontact the treating source? Will this leave the treating source evidence less "supported" and thus given less weight.
  4. Evidence that is specific and addresses disability determination criteria. The NPRM focuses on how the SSA collects and considers evidence of disability. The preface talks about the advantages of electronic transmission of medical records, describing it as "dramatically improve[ing] the evidence collection process, particularly as it pertains to obtaining records from your medical source(s)." However, how is this relevant to SSA and DDSs obtaining complete evidence from treating sources? Further, how does this or the NPRM address the long-term problem of DDSs failing to oblation evidence that specifically addresses the criteria of the disability determination process?

Website help on how Social Security reform options affect people with disabilities. (2011, April). NOSSCR Social Security Forum, 33(4), 4.