District Courts Rule on New Opinion Evaluation Regs

Empire Justice Center October 30, 2020

Previous editions of this newsletter have detailed the Social Security Administration’s (SSA’s) 2017 regulations on the evaluation of opinion evidence. The regulations, which went into effect for applications filed on or after March 27, 2017, arguably undercut the Second Circuit’s long-standing Treating Physician Rule, embodied in 20 C.F.R. §§ 404.927 & 416.1527. We have speculated that recent Second Circuit decisions based on the old regulations offer a glimmer of hope that some aspects of the rule would survive the new regulations, particularly the court’s requirement that the Administrative Law Judge’s (ALJ’s) reasoning be articulated.


The first of the ALJ decisions based on the new rules to reach District Court have indeed kindled that hope. Marissa Sobel of the Urban Justice Center has helpfully compiled an ever-growing list of the decisions. See, for example, Pamela P. v. Saul, No. 19-CV-575 (DJS), 2020 U.S. Dist. LEXIS 88603, 2020 WL 2561106 (N.D.N.Y. May 20, 2020), where the court remanded based in part on the ALJ’s failure to articulate appropriate rationale for the persuasiveness assigned to the medical opinions.  The ALJ’s rationale was insufficient to permit the Court meaningful review.  The court held that the new regulations continue to require ALJs to consider many of the same factors addressed under the treating physician regulations. Similarly, in Andrew G. v. Comm’r of Soc. Sec., No. 19-cv-942 (ML), 2020 U.S. Dist. LEXIS 182212, 2020 WL 5848776 (N.D.N.Y. Oct. 1, 2020), the court remanded, faulting the ALJ for failing to follow the regulatory requirement that she adequately explain the supportability or consistency factors. In Brian O. v. Comm’r of Soc. Sec., No. 19-cv-983, 2020 U.S. Dist. LEXIS 101320, 2020 WL 3077009 (N.D.N.Y. June 10, 2020), the court did not analyze the persuasiveness standard because it remanded the claim on other grounds. But it noted the ALJ must still articulate how medical opinions are considered.


Several cases also relied on the basic premise of the Treating Physician Rule to order remand. In Shawn H. v. Comm’r of Soc. Sec., No. 19-cv-113 (JMC) 2020 U.S. Dist. LEXIS 123589, 2020 WL 3969879 (D. Vt. July 14, 2020), the court held that the new regulations still recognize the “foundational nature” of the observations of treating sources. See also Soto v. Comm’r of Soc. Sec., No. 19-cv-4631 (PKC), 2020 U.S. Dist. LEXIS 181068, 2020 WL 5820566 (E.D.N.Y. Sept. 30, 2020), citing Shawn H.


Two other recent cases that affirmed the ALJ decisions found the ALJs’ analyses of persuasive supported by substantial evidence without an in-depth discussion of the new regulations.  Kami B. v. Saul, No. 18-cv-1497 (DJS), 2020 U.S. Dist. LEXIS 7396, 2020 WL 247279 (N.D.N.Y. Jan. 16, 2020); Jackson L. v. Comm’r of Soc. Sec., No. 19-cv-786 (ATB), 2020 U.S. Dist. LEXIS 101319, 2020 WL 3077051 (N.D.N.Y. June 10, 2020).


Marissa’s list is available on request.  Please let us know of district court decisions you receive under the new regulations, so they can be added to Marissa’s list.  And please consider carefully whether to appeal any denials under the new regulations to the Second Circuit.  In addition to the panel discussions planned in January on preparing ALJ claims under these new regulations, we hope to have an additional session on litigation – so stay tuned.