The Treating Physician Rule Lives

Empire Justice Center April 30, 2019

Who says the Treating Physician Rule is dead?  Although it may be on life support, the rule still governs claims filed prior to March 27, 2017.   Advocates should be aware by now that the Social Security Administration’s (SSA’s) treating physician regulations have been superseded by new evaluation of opinion evidence regulations, applicable to claims filed on or after March 27, 2017.  See the January 2017 edition of this newsletter for more on the new regulations. But the courts are still reviewing claims filed before March 27, 2017, under the old regulations, and perhaps more importantly, under the judicially created “treating physician rule.”  We previously reported on recent Second Circuit cases relying on the rule in the January 2019 and July 2018 editions of the newsletter.

In Bryne v. Berryhill, 752 F. App’x 96 (2d Cir. 2019) (per curiam), the Court of Appeals remanded because the ALJ’s conclusory reasons for rejecting the opinions of the treating physician did not appear to provide a basis for declining to give the opinions controlling weight.  The ALJ did not consider the correct factors or provide “good reasons” for assigning “less weight” to the treating physician’s opinions.  The ALJ had rejected the opinions as “unsupported by diagnostic testing” and because of perceived conflicts with treatment notes.  But the ALJ failed to explain why the diagnostic tests cited by the physician were insufficient to support his conclusions.  Nor did the court find the physician’s acknowledgement that physical therapy had been “helpful” inconsistent with his treatment notes.


Thanks to Chris Bowes for continuing to breathe life into the Treating Physician Rule.