From the 9th Circuit Court of Appeals' summary of its April 22, 2022 opinion in Woods v. Kijakazi:
... [T]he panel held that recent changes to the Social Security Administration’s regulations displaced longstanding case law requiring an administrative law judge (“ALJ”) to provide “specific and legitimate” reasons for rejecting an examining doctor’s opinion. For claims filed on or after March 27, 2017, that are subject to the new regulations, the former hierarchy of medical opinions – in which the court assigned presumptive weight based on the extent of the doctor’s relationship with the claimant – no longer applies. While the panel agreed with the government that the “specific and legitimate” standard was clearly irreconcilable with the 2017 regulations, the panel held that the extent of the claimant’s relationship with the medical provider – the “relationship factors” – remained relevant under the new regulations. An ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant’s records. However, the ALJ no longer needs to make specific findings regarding those relationship factors. ...
30 comments:
This undercuts a planned NOSSCR presentation for next month's law conference that the old "treating physician" rule is still enforceable.
The word is "supersede."
I've never understood 9th circuit precedent to have been merely predicting the amount of weight that is to be afforded to a medical source (I recognize the credit-as-true doctrine does do that), but to address the basic standards of what is required to constitute reasons for an unfavorable decision, supported by substantial evidence as required by statute.
That said, the Court still held that treating source opinion evidence must be addressed by the ALJ which is more than SSA argues. Curious why this was decided without oral argument, and I'll be following if a motion for rehearing or en banc is made.
It still chaps my backside that because SSA was having so many cases remanded by the federal courts due to not properly following/articulating the treating physician rule they just went and changed the regulations instead of addressing the root of the problem. I make this point to my clients all the time so they understand that the system is truly stacked against them.
Apparently the agency determined the “root of the problem” was the regulation!
I'm a claimant. I've been with both my doctors for 12 years! No 20 minute Dr. Appointment where they know nothing about me? Longetivity used to help, I do hope it still does? I hope past income, and gainful employment still comes into factor? I haven't been able to work for nearly 20 years. Multiple surgeries that continue, ongoing multiple medications....etc..etc... I certainly hope they take that all into account still! Hopefully I will never end up in a federal case, or in front of an ALJ. Can't afford a lawyer for a rejected CDR appeal. CDR's are so hard on claimants...they send those with mental issues into panic, regardless of time being treated, doctors, medical records...it's harmful to an extent, but understandable that CDR's are necessary.
If failure to follow the treating physician rule is "the root of the problem," consider the possibility that the root of the root of the problem is the prevalence of sympathetic and well-intentioned treating physicians signing off on unsupported advocacy opinions which leave the adjudicator no choice. At a minimum, recognize that this is the perception involved, not a presumption that the adjudcicator knows the claimant better than the physician, nor that there is some conspiratorial pressure from the agency to deny.
@4:31
On the bright side, ninth circuit precedent is not overruled to the extent that ALJs speculating that treating physicians would be willing to commit fraud due to sympathy or bias in favor of their patient is unreasonable as speculation is not evidence. Your comment is addressing a separate perceived issue and your solution is legal error.
In any event, the conspiratorial pressure I acknowledge is not from SSA. It's from the CEs who are hired by the state agency, a state agency whose funding is based on "accuracy" meaning a recon award is against their interests. To the extent the CEs are bias, generally not, but their exams are short because they are paid by the visit, not duration of the visit. Short visit means rushed testing. Also I'm not sure if it is even controversial to say the MMSE is absurd and a potted plant could score at least 20/30.
SSA was worried that it was losing too many cases in Federal Court on treating source opinion issues. In those cases, agency adjudicators often failed to do a thorough evaluation and articulated findings poorly. Courts were noticing. SSA asked ACUS for ideas to reduce the number of Federal remands.
There were two ways ACUS and SSA could have addressed it: raise the bar, or lower the bar. Raising the bar meant training and requiring SSA adjudicators and decision writers to follow the existing rules better. SSA rejected that, even though disability advocates proposed it as the best solution.
Lowering the bar meant changing the regulations so that even sketchy decisions which didn't indicate how all the probative evidence was evaluated would be more likely to survive judicial scrutiny. That's what SSA went with, lowering the bar, to the detriment of the public that it is supposed to serve.
Lowering the bar is what the government is all about.
The idea that thousands of doctors are willing to lie to help their patients get disability is absurd. Unfortunately, there does seem to be a pervasive attitude within the agency that it is true. Logically, a treating physician is going to know more about a patient's conditions and limitations than is a consultant who may, at best, spend 10 minutes on the file. We know for a fact that some of these consultants don't look at the records but merely rely on excerpts put on the DDE form by the examiners. The agency simply wants to deny more claims and wants no accountability for doing so. That is what this change was about. And, talk about bias - we constantly see good solid treating physician's opinions rejected for ridiculous reasons while the cursory and unsupported opinions of DDS consultants are never scrutinized. There is some case law that showed this same thing was going on in the 1980s and then the courts rebuked the agency. Unfortunately, the judges we have today seem to be more inclined to simply defer to the agency.
Yup. This is the way.
@9:19AM
"Unfortunately, the judges we have today seem to be more inclined to simply defer to the agency."
This is not by happenstance. SSA has been indoctrinating ALJs with this mindset. And by pushing them to meet numbers goals, its just easier for some ALJs to latch on to the DDS opinion and deny the case than to act as an independent, unbiased decision maker. This is especially true when approval are given greater scrutiny by the agency than denials. And when you hire a lot of insiders to boot, its perfect storm for screwing over claimants.
@9:58
I agree with the sentiment, but how is an unfavorable any quicker to write than a favorable? I've heard allegations of there being greater scrutiny to approvals than denials, specifically I recall that was an argument made by the ALJ union in litigation against SSA, but I'm entirely unaware of how that is actually implemented. Not saying I don't believe you, just I've always been curious how this is actually happening. POMS and HALLEX don't really get into logistics.
As an ALJ, I can say that, as a practical matter, my approach to treating source opinions has been the same both pre and post 3/21/17: if the opinion is consistent with the contemporaneous treatment notes, I find it persuasive (or gave it substantial weight); if it is not, I don't. I can count on one hand over the past five years the times a representative has submitted a treating source statement that was not ridiculously completed, indicating the claimant can only sit, stand, or walk a matter of minutes, can only lift 2#, would miss work 50% of the time, has 20 other extreme limitations, etcetera, ad nauseum. These extreme limitations are never explained or supported and 98% of the time they are completed by a primary care provider whose treatment notes scarcely reflect any examinations, much less objective findings or clinical signs supportive of or consistent with the extreme limitations offered. Obtaining and submitting an opinion like this does the claimant no favors and reflects poorly on the representative's skills as an advocate. Rather than work with providers to obtain helpful and relevant medical source statements, representatives are content to merely send their client into an appointment with a one-size-fits-all form and then complain about how SSA "lowered the bar" when ALJs don't find these statements persuasive.
@3:48
20 CFR § 404.1740(b)(1) requires representatives to forward information or evidence as soon as practicable. We've never withheld an opinion based on it being "extreme," but we've also never withheld a statement from a treating source that says effectively, the claimant is fine and not limited in any way. That's improper and to the extent you find that reflects poorly on a representative's skills as an advocate, you don't understand the non-adversarial nature of the proceedings. To the extent a medical source, even from a treating source, is not deserving of weight, you argue why the record does or does not support it. It's very disturbing you would find disclosing evidence to reflect poorly on representatives.
@3:38 - Do you apply the same standards to the opinions of the DDS consultants?
ALJ favorable decisions may get pulled for pre-effectuation review before benefits get paid. But ALJ unfavorable decisions only get reviewed on the claimant's request.
@3:48
The factors which drive medical and mental health treatment note content, in order of importance are 1. insurance medical billing requirements 2. protecting against malpractice claims 3. aid in tracking patient's condition for treatment purposes. It is not to document disability and provide an accurate record of functional limitation and symptom duration and severity. Given that truth, it is expected that information in treatment records will often not mirror the content of treating source opinions of functional limitation. It's legitimate to consider consistency of opinions with other records. However, one point I urge ALJs to keep in mind, is that it would not be reasonable to require that medical treatment records contain information that they were never designed capture.
I don't see how anyone can argue against the legal conclusion arrived at in this unanimous decision, and I don't see any basis for appeal, whether rehearing or en banc, or beyond.
One can disagree with the policy decisions of the Regulations in question, but these five-year old Regs were carefully considered and carefully constructed to reach this conclusion.
And who can really argue against consistency and supportability as being the prime factors in evaluating opinion?
@12:47
Sure, so here's the issues I see with it:
1. the specific and legitimate reasons standard does not apply only to treating physicians, and it's unclear how it's any different then what the actual holding of the Court is; the ALJ has to provide an explanation for rejecting medical source opinion evidence and this explanation must be supported by substantial evidence.
2. The specific and legitimate reasons standard does not amount to the Court applying a presumptive weight of any kind.
3. The new regulations do maintain the treating/examining relationship as relevant factors which an ALJ is always required to consider; they just are not required to articulate how such factors are considered. The relationship factor is specifically stated to be lesser than the supportability/consistency factors, but even the new regulation again states that all the factors must be considered in any case.
4. The specific instruction for ALJs to obfuscate their reasoning is contrary to 42 USC § 405(b).
@3:48
The primary care doctor also reviews the specialist notes. That's how PCPs work. The PCP doesn't reevaluate someone's spine while they are also seeing an orthopedic surgeon. The PCP manages all their treatment and that also includes assessing and completing functioning forms for SSA and many other requestors.
The Agency manipulates the ALJs. ALJs are people. They respond to incentives and don't like to do more work than they have to. Frankly, if you read the SSRs, CFR, and POMs, evaluating these things are pretty simple.
"I make my records for me, not Social Security!" A doctor told me that when I asked him to simply list the symptoms that I had been having for YEARS before I ever saw him. The idea that a doctor today would do ANYTHING today to really help a claimant is laughable. A family doctor that would make all kinds of claims to help out a patient...not in my experience. Conn was paying kickbacks. What can someone on food stamps offer? Most doctors today are corporate doctors...and many of those corporations have strict rules about doing ANYTHING to help claimants. They won't fill out forms...This has been especially true since Obamacare went into full effect.
ALJs used to give people the benefit of the doubt, especially when someone had a long work history. Now, you have to "prove beyond a reasonable doubt," because ALJs are largely upheld in some circuits. 5, 10, and 15 YEARS of records are basically ignored by some ALJs. The standard needs to be changed so that ALJs can ONLY deny if the preponderance of evidence supports a denial.
But there is no “one size fits all” for disability. A condition that may be disabling to one person may not be disabling to same extent for another.
You’re presumed innocent until found guilty. So aren’t you healthy enough to work until proven otherwise?
It’s not the government’s job to prove you’re disabled.
@Tim
Absolutely correct. Most doctors in my experience refuse to even complete statements for their patients as it's "office policy not to."
Also, the ALJs actually are supposed to deny/award based on a preponderance, but the Courts just review based on the lower substantial evidence standard. Wouldn't actually be that complicated to make it the same standard, although SSA would freak out.
Some conditions are "unprovable" to a sceptic.. what objective evidence proves schizophrenia, depression, etc? What proves severity in MS? Arthritis? Even ALS, which is a 100 % disabling condition, is a diagnosis of exclusion. Meaning, there is NO TEST that PROVES it. But, my great grandmother died from it...I know how "real" it is. Pain is what disables you in musculoskeletal conditions, such as arthritis. Until McCoy brings his tricocorder, there are NO OBJECTIVE TESTS for detecting pain. So, you are asking for something the claimant CANNOT provide. However, the law claims that the burden of proof shifts to SSA at step 5. Where is the proof that the "jobs" exist and that the claimant can perform them at a competitive level AND sustain it? The VE claims 3 jobs..2 haven't existed for decades and the third can't even be identified. How is that "proof." Basically, the claimant is at the mercy of the agency and the ALJ. There are no consequences to agencyfor being wrong. Especially if you live outside of New York or California.
12:02, it would actually be quite complicated to use a preponderance standard for judicial review, because the substantial evidence standard is set by statute. You would need Congress to amend the Social Security Act.
It may not matter much anyway, as substantial evidence is a vague concept that means different things to different people. There are judges who will say that they're applying the substantial evidence standard, but then they'll weigh the evidence as they see fit. Some courts (most notably the 9th Circuit) have even created a "credit as true" rule to push back on agency decisions that they don't like.
Blaming representatives for obtaining and submitting treating physician’s statements that you deem extreme is absurd. Do you expect the rep to tell a doctor what to put? That would be an unethical. Or do you expect the representative to withhold the statement? Also unethical.
In my opinion, the ALJs who see most treating physician statements as extreme are typically the ones who overlook the impact of doing things 8 hours a day, 5 days a week. They are the ones who simply cannot comprehend that from a practical standpoint, someone with something like fibromyalgia that causes only moderate pain when they are free to structure their life around minimizing their pain will end up with intolerable pain if they attempt to do the activities that cause pain 40 hours a week. The treating physicians get this and fill out the statements accordingly. Most ALJs seem to get this, at least to some extent. But those who scoff and reject the treating sources as extreme, sympathetic, and biased when there is evidence to support an impairment that causes pain which could be aggravated by increased activity seem to be the reason the treating physician rule was needed in the first place.
For step 5, the answer should be, "Would an employer be willing to hire a hypothetical person with the listed job skills, limitations, and competitiveness on an SGA level?" If a person can't REALISTICALLY perform and sustain a job 75%-90% of the scheduled time, can they really perform the job?
With my disabilities, what I do today can affect me for days or even weeks later. I made a cheesecake for Easter. One cheesecake. By the time it was ready to put in the oven, my pain levels had gone up drastically. I have been in tremendous pain ever since. I am sure the weather hasn't helped that. But, that was 2 weeks ago...and it doesn't feel like it'sgetting better. It has also been hard for me to sleep, because of increased pain. From making one cheesecake.
@4:34
12:02 here. I'm aware it's set by statute. I said it wouldn't be complicated to change it, not that it was likely. It would literally be changing about 3 words in the statute, which is why I said it would not be complicated. The credit as true rule had nothing to do with substantial evidence, it was created because if SSA's regulations required the greatest weight to be given to treating physicians, absent valid reasons not to, which is what the prior regulations said, then it would make no sense to return the claim to SSA when everything is telling the Court an award is going to be found on remand. I do think the regulatory changes have pretty much killed the credit-as-true rule, without touching anything relating to the standard of review.
I would argue the very concept of substantial evidence does require a "weighing" of the evidence, by definition, because determining whether the evidence can reasonably support the ALJ's findings is itself a weighing analysis. So there is nothing wrong with Courts reviewing the record and determining that there is evidence that a reasonable mind could accept the ALJ's determination/findings, but that itself does require a weighing of the evidence. It's just an extremely low bar.
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