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 Life, Health, Disability and ERISA Litigation Group

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 May 10, 2017
Social Security Administration Rescinds Treating Physician Rule

Since 1991 the Social Security Administration ("SSA") employed an evidentiary rule in disability determinations which required adjudicators to give controlling weight to the opinions of a claimant's treating physician.  While Social Security Disability Income ("SSDI") determinations are not rendered in an adversarial proceeding, this rule clearly tilted the ability of claimants to successfully establish a payable claim under SSA rules.  In January SSA issued new rules in the Federal Register entitled, Revisions to Rules Regarding the Evaluation of Medical Evidence, rescinding the long standing Treating Physician Rule. 80 Fed.Reg. 5844 (Jan. 18, 2017).  For SSDI claims filed on or after March 27, 2017, SSA "will not defer or give any specific evidentiary weight to any medical opinion(s) or prior administrative medical finding(s) including those from your medical sources." Id. at 5857-58.
 
In the Comments section of the new rules, the SSA specifically cited the Supreme Court's decision in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), which specifically distinguished the Treating Physician Rule in SSDI determinations from decisions made by private disability plans which have never employed such a weighting analysis.  The SSA was responding to comments they had received from interested parties that argued that the Court had looked favorably on the Treating Physician Rule and therefore it should remain in the rules used by SSA.  The comments were rejected and SSA made clear that from this point forward adjudicators would look at all medical evidence based on its content and context and not on its source.
 
Interestingly, this change comes about just as the Department of Labor has passed new Regulations, which become effective January 1, 2018, requiring ERISA governed disability plans to explain why SSA's disability determinations of a claimant's eligibility for SSDI differ from the findings of a private disability plan on that same claimant.  29 CF.R. § 2560.503-1(g)(A).  For SSA claims filed after March 27, 2017, private plans will no longer be able to cite the Treating Physician Rule as one of the factors distinguishing its disability findings from an SSA determination.  It is also likely that the new Rule may make it more difficult for SSA claimants to be approved for SSDI.  Without the deference to an attending physician's findings Administrative Law Judges will be free to adopt the opinions of consulting experts over a claimant's doctor(s). In the future, insurers may see fewer discrepancies between private plan findings and those findings of SSA.   
 
It will take some time for SSA claims to reach final adjudication under the new Rules but now is the time to prepare for these changes. 

For more information on Mirick O'Connell's
Life, Health, Disability and ERISA Litigation Group, contact:

Joseph M. Hamilton
Joan O. Vorster
jvorster@mirickoconnell.com
J. Christopher Collins

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