“Treating Physician” Regulations Eviscerated

Empire Justice January 31, 2017

In seemingly record time, the Social Security Administration’s (SSA) proposed Revisions to Rules Regarding the Evaluation of Medical Evidence, published in the Federal Register on September 9, 2016, became final on January 18, 2017.  https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/html/2017-00455.htm. These new regulations redefine several key terms related to evidence and revise the list of acceptable medical sources to include advanced practice registered nurses and physician assistants. But most significantly, under the new regulations SSA will no longer give a specific weight (i.e., controlling weight) to any medical opinions, including from the claimant’s own healthcare providers.

SSA’s professed goal in revising the rules is “to ensure that they reflect modern healthcare delivery and are easier to understand and use.” 82 Fed. Reg. 5844. They will become effective on March 27, 2017, but will only apply to cases filed on or after March 27th. A revised version of the current treating physician regulations, which incorporates some aspects of the now rescinded Social Security Ruling (SSR) 06-3p, will govern pending cases filed prior to that date. See 20 C.F.R. §§ 404.1527(f) & 416.927(f).

The proposed regulations were outlined in the October 2016 edition of the Disability Law Newshttp://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/ssa-proposes-new-treating.html#.WIJlWssiy70. In response to the 383 comments received from individual citizens, claimants’ representatives, members of Congress, professional organizations, and advocacy groups, SSA made some revisions to the proposed rules, such as including physician assistants in addition to nurse practitioners to the list of acceptable medical sources (AMS). A summary of the differences between the proposed and final rules is at 82 Fed. Reg. 5844-5845. But ultimately, the most significant proposed changes to the way evidence from treating sources is considered were retained.

Primacy of “treating source” opinions eliminated
In fact, the term “treating source” has been removed from the regulations, replaced by “your medical source.” Relying heavily on the 2013 findings of the Administrative Conference of the United States (ACUS), SSA cites the burdensome number of findings required by adjudicators under the current rules, conflicting federal court perspectives, and the changing nature of the primary healthcare system as justification for the proposed changes. According to SSA, changes in how people receive primary care have undermined the presumption that a claimant’s sole treating physician has the longitudinal knowledge and unique perspective that objective medical evidence alone cannot provide.

In SSA’s response to public comments, it “recogni[zed] that an individual’s own medical source may have a unique perspective of an individual’s impairments.” 82 Fed. Reg. 5857. And it admitted that under 20 C.F.R. §§ 404.1520c & 416.920c, the “final rules also continue to allow an adjudicator to consider an individual’s own medical source’s medical opinion to be the most persuasive medical opinion if it is both supported by relevant objective medical evidence and the source’s explanation, and is consistent with other evidence” 82 Fed. Reg. 5853. But the primacy of opinions from treating sources is no longer acknowledged in the regulations themselves.

Weighing of evidence replaced by consideration of “persuasiveness”
Rather than weighing medical evidence from various sources, with special recognition of the intrinsic value of evidence from treating sources, SSA will now “consider” the “persuasiveness” of opinions from all medical sources. According to the preamble to the proposed regulations, SSA believed its current rules used “weigh” and “weight” in several confusing ways. The new regulations use the term “persuasiveness” instead of “weight,” and “consider” instead of “weigh.” 81 Fed. Reg. 62574. According to SSA in response to comments, the current regulations do not specify specific weights, other than “controlling.” As a result, adjudicators used a variety of terms, such as significant, great, little, more, and less. SSA hopes to avoid this confusion by having adjudicators focus on how persuasive they find opinions. 82. Fed. Reg. 5858. But is unclear how adjudicators, in rendering a “minimum level of articulation” required by the new regulations, will define or describe “persuasive.”

Opinions of all medical sources will be considered
On a positive note, in response to comments, SSA revised the proposed rules to reflect that “all medical sources” will include medical sources that are not acceptable medical sources. Per 20 C.F.R. §§ 404.1502 & 416.902, the definition of “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law…”  According to SSA’s response to comments, the definition includes licensed mental health care providers. 82 Fed. Reg. 5847. So, for example, although SSA refused to include Licensed Clinical Social Workers in its final definition of “acceptable medical sources,” adjudicators will be required to consider the persuasiveness of their opinions under the new 20 C.F.R. §§ 404.1520c & 416.920c. While objective evidence from a non AMS can still not be used to establish a “medically determinable impairment” (MDI) under 20 C.F.R. §§ 404.921 & 416.1521, their opinions as to functional limitations will be “considered,” but not accorded any extra weight. This definition would presumably apply to physical therapists and chiropractors as well. (SSA claims this change will also allow it to select an individual’s own medical source, regardless of AMS status, as a preferred source to conduct consultative examinations. 82 Fed. Reg. 5847.)

Factors for considering “persuasiveness”
How will SSA consider the “persuasiveness” of all these medical opinions, including those from a claimant’s own medical sources as well as prior administrative opinions from SSA’s medical and psychological consultants (MCs & PCs)? It will use several factors, with “relationship with the claimant” subsidiary to what SSA deems as the two most important factors: supportability and consistency. See 20 C.F.R. §§ 404.1520c(a) & 416.920c(a).

The factors, in order of importance, are: 1) supportability, 2) consistency, 3) relationship with the claimant, combining the current examining and treatment factors, 4) specialization, and 5) other factors, which include familiarity with other evidence in the claim or an understanding of disability policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c) & 416.920c(c). SSA acknowledged that determining “consistency” might be challenging in certain claims, but refused to clarify what consistency means beyond acknowledging its use in the regulations is “the same as the plain language and common definition.” 82 Fed. Reg. 5854. According to SSA, it “includes consideration of factors such as whether the evidence conflicts with other evidence from other medical sources and whether it contains an internal conflict with evidence from the same medical source.” Id.

But SSA also acknowledged “that the symptom severity of some impairments may fluctuate over time, and we will consider the evidence in the claim that may reflect on this as part of the consistency factor as well.” 82 Fed. Reg. 5854. SSA also acknowledged “that evidence from a medical source who has a longstanding treatment relationship with an individual may contain some inconsistencies over time due to fluctuations in the severity of an individual’s impairments.” SSA plans to include the extent to which such inconsistencies should be taken into consideration in its training to adjudicators. 82 Fed. Reg. 5857.

The proposed regulations had listed familiarity with the entire record and understanding of SSA policy as separate factors. The final version of the regulations combines them as “other factors,” so as not to appear that SSA favors SSA’s medical and psychological consultants’ (MCs & PCs) opinions. 82 Fed. Reg. 5857. SSA also revised the proposed rules to recognize that new evidence submitted after the MC or PC has rendered an opinion might make the opinion “more or less persuasive.” 20 C.F.R. §§ 404.1520c(c)(5) & 416.920c(c)(5).

Of note, all of the factors except relationship specifically refer to persuasiveness. For example, the more supportable and consistent an opinion is, the more persuasive it will be. Or the opinion of a specialist may be more persuasive. In contrast, the factors under the relationship category are simply listed, and include length of relationship, frequency of examinations, purpose and extent of treatment relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3) & 416.920c(c)(3).

How will factors be “articulated”?
How the factors are “considered” will be “articulated” by the adjudicator. What do “consider” and “articulate” mean? In response to a comment, SSA declined to replace “consider” with “evaluate.” According to SSA, “consider” is easily distinguishable from the articulation requirements. “Adoption of the term ‘evaluate’ could imply a need to provide written analysis, which is not what we intend.” 82 Fed. Reg. 5855.  “Articulate,” on the other hand, does seem to imply a written analysis. 20 C.F.R. §§ 404.1520c(b) & 416.920c(b) requires adjudicators “to articulate in our determination or decision how persuasive we find all the medical opinions.” SSA revised 20 C.F.R. §§ 404.1520c(b)(1) & 416.920c(b)(1) to provide that adjudicators will articulate how they considered medical opinions, rather than merely consider them. It “expect[s] that the articulation requirements in these final rules will allow a subsequent reviewer or a reviewing court to trace the path of an adjudicator’s reasoning.” 82 Fed. Reg. 5858.

But SSA left intact the provisos that adjudicators are not required to articulate individually how they considered each medical opinion when a medical source provides multiple opinions. 20 C.F.R. §§ 404.920c(b)(1) & 416.1520c(b)(1). Nor are adjudicators required to explain how they considered the other factors besides consistency and supportability when they articulate their consideration of medical opinions. 20 C.F.R. §§ 404.1520c(b)(2) & 416.920c(b)(2).  Those other factors, including relationship with claimant, must be articulated only if there are two or more conflicting but equally persuasive medical findings on the same issue that are equally well-supported and consistent. 20 C.F.R. §§ 404.1520c(b)(3) & 416.920c(b)(3). According to SSA, “it is not administratively feasible for us to articulate how we considered all of the factors for all of the medical opinions and prior administrative findings in all claims.” 82 Fed. Reg. 5856.

Adjudicators will also be relieved of articulating how evidence from nonmedical sources was considered. Adjudicators will have discretion whether to discuss such opinions. 20 C.F.R. §§ 404.1520c(d) & 416.920c(d). Nonmedical sources include the claimant, educational personnel, social welfare agency personnel, and family members, caregivers, friend, neighbors, employers, and clergy. 20 C.F.R. §§ 1502 & 416.902. SSA did acknowledge in response to comments, however, that these nonmedical source “can provide helpful longitudinal evidence about how an impairment affects a person’s functional abilities and limitations on a daily basis,” especially in claims for child disability. 82 Fed. Reg. 5850. It refused, however, to give controlling or other weight to opinions from teachers. 82 Fed. Reg. 5855. But as noted above, claims filed before March 27, 2017, will be reviewed under the revised 20 C.F.R. §§ 404.1527(f) & 416.927(f). The new subsection incorporated the factors from the now rescinded SSR 06-3p for evaluating evidence from nonmedical sources.

Additions to List of Acceptable Medical Sources
In addition to these major changes on how opinion evidence is evaluated, the regulations revise and reorganize other existing regulations and Social Security Rulings (SSRs). As noted above, SSA has revised the rules for determining acceptable medical sources, now including nurse practitioners (Licensed Advanced Practice Registered Nurses) and physician assistants, as well as audiologists.  20 C.F.R. §§ 404.1502 & 416.902.

Objective Medical Evidence
Objective medical evidence includes signs or laboratory findings, or both, rather than the current signs and laboratory findings. 20 C.F.R. §§ 404.1502 & 416.902; 20 C.F.R. §§ 404.1513(a)(1) & 416.913(a)(2). Of note, symptoms, diagnoses, and prognoses are not considered opinion evidence, but moved to the category of “other medical evidence.” 20 C.F.R. §§ 404.1513(a)(3) & 416.913(a)(3). Administrative findings of fact and medical opinions from state agency medical and psychological consultants, other than ultimate determination as to disability, are considered “prior administrative medical findings.” 20 C.F.R. §§ 404.1513(a)(4) & 416.913(a)(4). SSA revised its proposed regulations to clarify that this term refers only to prior findings in a current claim. “These final rules do not affect our current policies about res judicata” effects of findings from earlier, separate claims. 82 Fed. Reg. 5852. These findings are considered under the same factors used to consider other medical opinions discussed above. New 20 C.F.R. §§ 404.1513a(b) & 416.913a(b) provides that evidence from state agency medical or psychological consultants must be considered by Administrative Law Judges (ALJ) under the opinion regulations discussed above, but ALJs are not required to adopt any prior administrative findings. See also 20 C.F.R. §§ 404.1520b(c)(2) & 416.920b(c)(2).

Decisions of Other Governmental Agencies
The new regulations specifically rescind the provisions of SSR 06-3p related to decisions by other agencies. Decisions by other governmental agencies and nongovernmental entities are specifically categorized as “evidence that is inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c) & 416.920b(c). See also 20 C.F.R. 404.1504 & 416.904. SSA addressed this issue extensively in the Preamble to the September Notice of Proposed Rule Making (NPRM) and in discussing the comments. Of note, two commenters questioned whether such decisions would have to be submitted under the “all evidence rules” at 20 C.F.R. §§ 404.1512(a) & 416.912(a). SSA “clarified” this issue, responding that the decision “may not relate to whether or not an individual is blind or disabled under our rules.” Adjudicators nevertheless will consider the relevant underlying supporting evidence. 82 Fed. Reg. 5849.

Other Inherently Non-persuasive Evidence
Other evidence inherently neither valuable nor persuasive includes statement reserved to the Commissioner. 20 C.F.R. §§ 404.1520b(c)(3) & 416.920b(c)(3). This includes statements that (i) a claimant is disabled or unable to work, (ii) has a severe impairment, (iii) satisfies the durational requirement, or (iv) meets or equals a listing; (v) define residual functional capacity (RFC) in SSA programmatic terms, (vi) RFC prevents the claimant from returning to past relevant work, or (vii) claimant does nor does not meet the requirements of the Medical-Vocational Guidelines.

Medically Determinable Impairments (MDI)
An MDI can only be established by objective medical evidence from an acceptable medical source (AMS).  20 C.F.R. §§ 404.1521 & 416.921. SSA has “clarified” that a medically determinable impairment (MDI) cannot be established by symptoms, diagnoses, or medical opinions. According to SSA, a diagnosis is not always reliable “because sometimes medical sources diagnose individuals without using objective medical evidence.” 81 Fed. Reg. 62567.

Medical and Psychological Consultants
SSA amended several rules to conform to the Balanced Budget Amendment (BBA), which requires that medical consultants who review claims must be licensed physicians or psychologists.

SSRs Rescinded
SSRs 96 -2p, 96-5p, 96-6p, and 06-3p have been rescinded. But SSA plans to publish a new SSR outlining how ALJs and the Appeals Council would obtain evidence to make medical equivalency findings.

Effective Date
As noted above, the regulations become effective on March 27, 2017. [As of the date of publication of this newsletter, it does not appear these regulations will be affected by the new administration’s freeze on new regulations.] But the regulations will only apply to claims filed on or after March 27th, so it may be some time before advocates begin to see their effect. The current regulations will continue to apply to cases in the administrative pipeline and in U.S. District Court. SSA has, however, amended the current treating source regulations with a change that will also take effect on March 27th but will presumably apply to cases in the pipeline. It has added 20 C.F.R. §§ 404.1527(f) & 416.927(f). According to SSA, these sections incorporated the provisions of SSR 06-3p, which will be rescinded on March 27th.  82 Fed. Reg. 5844. The new sections will govern the evaluation of evidence from non-acceptable medical sources and non-medical sources in pending claims. This category will include nurse practitioners and physician assistants, will be considered “acceptable medical sources” only in claims filed on or after March 27, 2017.

There will be much for all of us to learn as we cope with this seismic shift. The Empire Justice Center will offer trainings in the near future. And we look forward to your insights and observations.