Treating Physician Rule Requires Remand

Empire Justice Center January 28, 2019

Most advocates are aware by now that the Social Security Administration’s (SSA’s) treating physician regulations have been superseded by new evaluation of opinion evidence regulations, applicable to claims filed on or after March 27, 2017.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.”  In July 2018, we reported on a case in which the Second Circuit, in remanding a claim for calculation of benefits, appeared to reaffirm many of its treating physician cases.  Flynn v. Comm’r of Soc. Sec., 2018 WL 3323180 (2d Cir. July 6, 2018).  In September, the Court of Appeals again relied on the treating physician rule to remand a claim.  Messina v. Comm’r of Soc. Sec., — Fed. App’x. —, 2018 WL 4211602 (2d. Cir. Sept. 5, 2018).


In Messina, the court held the ALJ did not provide good reasons for rejecting the opinion of Mr. Messina’s treating physician opinion that he could not sit more than one to three hours in an eight hour work day.  According to the court, the “fact that Messina could occasionally lift 20 pounds and did not use a cane does not undermine Dr. Bash’s unrelated conclusion that Messina could not sit for more than one to three hours during an 8-hour work day.” 2018 WL 4211602, at * 4.  Additionally, the court found that if the ALJ found Dr. Bash’s report unclear or had questions about it, he had an affirmative duty to re-contact the doctor.


The Second Circuit also ruled that Dr. Bash’s opinion should have been considered even though he was not treating Mr. Messina at the time he sustained his injuries.  Citing Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003), the court held that Dr. Bash’s retrospective opinion could be accorded controlling weight unless contradicted by other medical evidence or overwhelming non-medical evidence.  Finally, it criticized the ALJ for relying on the opinion of a state agency consultant who had misread some of the evidence.


Mr. Messina apparently did an excellent job of representing himself before the Court of Appeals!