When Can Social Security Decide Not to Follow My Treating Doctor's Opinion?

Disability judges and claims examiners don't need to give special weight to a treating physician's opinion, but it's still important to have a treating doctor on your side.

By , J.D., University of Missouri School of Law
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If you're applying for Social Security disability benefits, your chances of success improve if your case is supported by your treating doctor (the physician who sees you regularly). However, in 2017, the Social Security Administration (SSA) eliminated its longstanding rule that treating physicians' opinions are entitled to special consideration.

New Rule on Medical Opinions and Treating Physicians

Social Security's new rule, which generally applies to claims filed on or after March 27, 2017, states that disability adjudicators should not give special weight to a treating doctor's medical opinions. Rather, treating medical opinions and the opinions of consultative examiners (doctors paid by Social Security) will be evaluated on equal footing for their "persuasiveness." Social Security's new rule states that the consistency and supportability of the medical evidence should be the most important factors in deciding how much weight to give to a medical opinion.

Consistency and Supportability

Essentially, if an administrative law judge (ALJ) finds that a medical opinion is consistent with the medical evidence and supported by the record, the ALJ may rely on that opinion without any regard for how many times the doctor or examiner has seen the claimant. (Indeed, in many cases, Social Security's consultative examiners will base their medical opinions on an examination or interview lasting as little as 15 minutes—or merely a review of the claimant's medical records.)

The elimination of the "treating physician rule" does not mean that your doctor's opinion is unimportant, although some would argue that it is not as important as it used to be. In fact, this rule change means that is more critical than ever to make sure that your doctor's opinion is well-supported by objective medical evidence, from lab tests to MRIs to psychological testing. The opinions of physicians who merely tick the boxes of a form without any supporting evidence are routinely ignored.

The opinion of a treating doctor or other provider should also be consistent with the other evidence in the claimant's file, and any inconsistencies should be explained by the provider. For example, if a claimant suffers from periodic debilitating back pain, and there is evidence in the record that the claimant goes grocery shopping or drives a car for extended periods, the physician (or nurse practitioner) must explain these apparent inconsistencies. If the claimant has no discomfort during one office visit, but complains of overwhelming pain the next, this too should be explained. Note that doctors who exaggerate their patients' symptoms are not being helpful.

Doctor's Expertise and Length of Relationship

Also keep in mind that a specialist who offers an opinion within his area of expertise is generally found more persuasive than a general practitioner. For example, the statements of a gastroenterologist regarding her patient's limitations due to fibromyalgia will usually be less persuasive than the opinions of the patient's treating rheumatologist or pain specialist. However, Social Security no longer considers this factor, nor the length of your relationship with a doctor, as one of the two major factors in deciding how much weight to give to a medical opinion.

In fact, Social Security is not required to discuss whether it considered the length of your relationship with your treating doctor or his or her expertise in its decisions. Social Security is required to explain how it considered the persuasiveness of a medical provider's opinion, but needs only address the supportability and consistency of the opinion.

Your Doctor's Opinion on Whether You Are Disabled

Oftentimes a physician who wishes to support his patient's disability case will offer to write a letter regarding the patient's condition. Unfortunately, because most doctors don't understand the disability process or what issues they need to address, these letters tend not to be very helpful (in particular, if the doctor simply states that the patient is, in his or her opinion, disabled). The question of whether the claimant is "disabled" is for Social Security to decide, not physicians. "Disability" is a legal term rather than a medical term, and physicians' opinions on this matter are not given any special consideration.

On the other hand, when denying benefits, ALJs occasionally state in their decisions that "No physician has ever found this claimant to be disabled." Despite this inconsistency, it's safe to say that your doctor's opinion as to whether you're "disabled" is not nearly as important as his or her opinions on the nature and extent of your work-related limitations. Your disability attorney should be able to provide your doctor with a Residual Functional Capacity (RFC) form that will address all the issues relevant to your case if your doctor fills it out completely.

Getting Persuasive Residual Functional Capacity Forms

To help ensure Social Security finds your doctor's opinion persuasive, make sure your doctor fills out a detailed RFC form. In an RFC form for a claimant with physical limitations, the doctor should specify the individual's exertional (strength-related) limitations, including the ability to lift, carry, sit, stand, and walk. Non-exertional restrictions should be addressed as well, especially those related to reaching, handling, bending, stooping, climbing, and crawling. Any environmental restrictions, such as exposure to dust, odors, or extreme temperatures, should also be noted.

In a mental RFC form, the treating physician or psychologist should address the patient's ability to understand, remember, and execute simple and complex instructions; maintain attention and concentration; interact with co-workers and the general public; and stay on-task for an entire eight-hour workday without excessive breaks.

In both mental and physical RFC forms, the doctor should address attendance and punctuality, and in particular, the question of whether the patient would miss more than two days of work per month for medical reasons.

Perhaps most importantly, the physician completing the RFC form must provide a medical basis for any of the above limitations the doctor includes. Doctors who merely check the boxes on an RFC form without citing any treatment notes, medical imaging, blood tests, or other evidence to support their opinions is not being nearly as helpful as they could be. You can get a physical RFC form here and a mental RFC form here.

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