Social Security will be implementing a rule change that eliminates the presumption of correctness regarding the opinion of the treating physician. Under the new rules, a judge can adopt any medical opinion, no matter how unqualified, even without a review of the medical records! The judge does not have to weight or explain why he adopted one medical opinion over another more qualified medical opinion. Think of this as the TRUST ME rule. It is unlikely that this new rule which is contrary to decades of published court opinions that require the judge to explain how he weighed the evidence will withstand the scrutiny of the District Court or Circuit Court of Appeals. It will take close to two (2) years for this terrible rule change to reach the appeals courts because all claims must first rest and age at the Appeals Council.
The new rule now shouts ”we are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical support source individually” 20 CFR 404.1520(c)(1). The statute further indicates, “We may, but are not required to, explain how we considered the factors in paragraphs C3 through C5” 404.1520(c)(2) [the portions of the regulation that describe the extent of treatment relationship, examining relationship, specialization, familiarity with the evidence]. In a mathematically imprecise statement the new regulation provides, “When there are two equally persuasive medical opinions, equally supported and consistent with the record, but not exactly the same, the Agency will articulate how the other most persuasive factors were decided“ 404.1520(b) (3).
There is a nod to the familiar categories of supportability, consistency, relationship with the claimant, length of treatment relationship and frequency of examinations from the prior 404-1527(c); however, the Agency giveth and the Agency taketh away. Because these critical factors are qualified with the permissive MAY, conservative judges will find the rule change validates presumptive and otherwise unarticulated decision making. The treatment relationship may help to demonstrate knowledge, a medical source may have better understanding, and specialization may be more persuasive. 404.1520(c) (3) (c) (1),(2),(3) (i), (ii), (iii). The real problem with this new regulation is its facial inconsistency with procedural and substantive due process and those pesky court decisions. It changes the critical adjudicative function into a hidden process. As written, the judge need not articulate how the evidence was weighed. The new policy of the Agency can be summed up as “trust me.” The hundreds of Federal District Court and Circuit Court decisions cannot be harmonized with unarticulated decisions.
If this doesn’t make your blood boil you have ice in your veins.