Administrative Conference of the United States

SSA DISABILITY BENEFITS PROGRAMS:
ASSESSING THE EFFICACY OF THE TREATING PHYSICIAN
RULE

Final Report: Apr. 3, 2013

This report was prepared by the Office of the Chairman of the Administrative Conference of the
United States. The views expressed do not necessarily reflect those of the Council, the members
of the Conference, or its committees.

CONTRIBUTORS

GRETCHEN JACOBS
RESEARCH DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
HAROLD J. KRENT
DEAN AND PROFESSOR OF LAW, IIT CHICAGO-KENT COLLEGE OF LAW
CONSULTANT TO THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
SCOTT MORRIS
ASSOCIATE DEAN AND PROFESSOR, IIT COLLEGE OF PSYCHOLOGY
CONSULTANT TO THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
AMBER WILLIAMS
ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

TABLE OF CONTENTS
Introduction ................................................................................................................................ 1
I.

SSA Disability Benefits Programs: Adjudication Process & Legal Standards ................... 3
A. Disability Claim Adjudication Process ........................................................................... 3
B.

Standards for Evaluating Medical Evidence ................................................................... 5

1.

Social Security Act ...................................................................................................... 6

2. Pre-1991: Federal “Common Law” Governs Evaluation of TreatingPhysician
Opinions .............................................................................................................................. 7
3.

1991 - Present: SSA’s Regulatory Approach to the Treating Physician Rule .......... 10

II. Distortions in Applying the Treating Physician Rule ......................................................... 14
A. The Sheer Number of Findings Required ..................................................................... 14
B.

Difficulty in Meeting Threshold to Reject Treating Source Opinion ........................... 16

C. Application of the Ninth Circuit’s Credit-As-True Rule .............................................. 20
D. Inversion and Subversion of Substantial Evidence Review ......................................... 23
III. Erosion of Bases for the Treating Physician Rule ............................................................. 24
A. The Changing Nature of the United States’ Health Care System ................................. 25
B.

Difficulty Ascertaining Treating Physician Status ....................................................... 33

IV. Empirical Analysis of SSA Data: Treating Physician Rule and Remand Rates................ 37
A. The Federal Courts ........................................................................................................ 37
B.

The Appeals Council..................................................................................................... 38

V. Perspectives on the Treating Physician Rule ...................................................................... 39
A. Other Federal and State Disability Benefits Programs ................................................. 40
1.

Minority Approach: Programs With a Treating Physician Rule .............................. 40

2.

Majority Approach: No Treating Physician Rule ..................................................... 42

B.

Views of Claimant Representative Organizations ........................................................ 45

1. Evaluation of Call for Expansion of Definition of “Acceptable Medical
Sources” ............................................................................................................................ 47
2. SSR 06-03p: Review of Federal Caselaw Suggests This Ruling Is Not Providing
Intended Clarity................................................................................................................. 52
VI. SSA Regulatory Options to Improve Evaluation of Medical Opinion Evidence
Relating to Disability Claims ................................................................................................... 54
A. Guiding Principles ........................................................................................................ 54
B.

Regulatory Options ....................................................................................................... 57

Appendix A: Methodology ....................................................................................................A-1
Appendix B: Analysis of SSA Data on Remand Rates by Federal Courts and the
Appeals Council .....................................................................................................................A-2
Table 1: Federal Court Filings and Remands, By Year (FY2009 – 11) .............................A-2
i

Table 2: Federal Courts-Relative Frequency of Remand Reasons, By Category
(FY2009-11) .......................................................................................................................A-3
Table 3: Federal Courts-Relative Frequency of OEE & RFC Remands,
By Subcategory (FY2009-11) ............................................................................................A-4
Table 4: Federal Courts-Relative Frequency of Treating Source Remands,
By Subcategory (FY2009-11) ............................................................................................A-5
Table 5: Federal Courts-Annual Trends in Frequency of OEE & RFC and Treating Source
Remands (FY2009-11) .......................................................................................................A-6
Table 6: Federal Courts-Annual Trends in Frequency of Treating Source Remands, By
Remand Code (FY2009-11) ...............................................................................................A-6
Table 7: Appeals Council-Annual Remand Rates (FY2009-11) ........................................A-7
Table 8: Appeals Council-Reasons for Remand, By Category (FY2011) (Con’t) ............A-8
Table 9: Appeals Council-Relative Frequency of OEE & RFC Remands,
By Subcategory (FY2009-11) ............................................................................................A-8
Table 10: Appeals Council-Relative Frequency of OEE & RFC Remands,
By Subcategory (FY2009-11) ............................................................................................A-9
Table 11: Comparison of Dispositions With and Without a Medical Expert Present
at Hearing .........................................................................................................................A-10
Table 12: Federal Courts-Frequency of Treating Source Remands, By Circuit
(FY2011) ..........................................................................................................................A-11
Appendix C: Comparison Between Selected Provisions of the 1991 and Current
Regulations Relating to the Treating Physician Rule ..........................................................A-12
Appendix D: Circuit Court Standards Relating to the Treating Physician Rule..................A-14
Appendix E: Letter from National Organization of Social Security
Claimants’ Representatives ..................................................................................................A-19
Appendix F: Letter from National Association of Disability Representatives ....................A-24
Appendix G: Private Health Plan Enrollment (1988 – 2012) ..............................................A-32
Appendix H: Federal Judicial Application of SSR-06-03p (2009 – 12) ..............................A-33
Table 13: Outcomes of District Court Cases Applying SSR 06-03p, By Circuit
(2009-12) ..........................................................................................................................A-33
Table 14: Annual Number of District Court Cases Applying SSR 06-03p,
By Circuit (2009-12) .......................................................................................................A-34
Appendix I: Summary of State Standards for NPs, PAs, & LCSWs ...................................A-35
Table 15: State Licensing Standards for NPs, PAs, and LCSWs .....................................A-36
Table 16: State Scope of Practice Standards for NPs .......................................................A-37
Table 17: State Scope of Practice Standards for PAs & LCSWs .....................................A-38

ii

INTRODUCTION
Consideration of medical opinions is intrinsic to both the administrative determination
of claims for disability benefits under Social Security Disability Insurance (“SSDI”) and
Supplemental Security Income (“SSI”), and to judicial review of administrative denials of
benefit claims. The SSA Commissioner has “exceptionally broad”1 statutory authority to
establish rules for the receipt and assessment of proof—including medical evidence—in order
to achieve efficiency and uniformity to the processing of over 3 million claims annually,
700,000 of which are heard by administrative law judges (“ALJs”). Given the nature of
medical evidence, this is no easy task.
Just over twenty years ago, in 1991, the Social Security Administration (“SSA”)
sought to bring greater clarity and uniformity to the assessment of medical evidence by
establishing regulatory standards for such evaluations, particularly with respect to treating
physicians.2 The treating physician rule—which remains largely unchanged today—affords
“controlling weight” to the opinions of the claimants’ treating physicians (or other acceptable
medical sources) so long as their views are well-supported by medical evidence and do not
conflict with other substantial evidence in the record.3 SSA gave treating physician opinions
special deference based on the assumption that such individuals usually have the most
knowledge about, and longitudinal insight into, their patients’ conditions.
Over the years, however, the treating physician rule has not brought this hoped-for
uniformity and clarity to the adjudication of disability benefits. Decisions by ALJs involving
the treating physician rule have been overturned at significant rates by the SSA Appeals
Council (“Appeals Council”), as well as by federal courts. Analysis of data provided by SSA
shows that, in recent years, the erroneous application of the treating source rule has been
cited with a ten percent frequency rate as a reason for remand by the Appeals Council.4 At
the district court level, the remand rate involving the treating physician rule is even higher—
cited at about a thirty-five percent frequency rate.5 Indeed, of the bases for remand by federal
courts that are tracked by SSA, the treating physician rule-based remands are the highest
category of remands.6
1

Heckler v. Campbell, 461 U.S. 458, 466 (1983).
See Soc. Sec. Admin., Standards for Consultative Examinations and Existing Medical Evidence; Final Rules,
56 Fed. Reg. 36,932, 36,934 (Aug. 1, 1991) [hereinafter 1991 Final Rules] (“[J]udicial decisions in several
circuits pointed to a need for a clear policy statement that would encourage uniformity of adjudication and
provide the public and the courts with a definitive explanation of our policy on weighing treating source
opinions.”) (emphasis added); see also Soc. Sec. Admin., Standards for Consultative Examinations and Existing
Medical Evidence; Proposed Rules, 52 Fed. Reg. 13,014, 13,016 (Apr. 20, 1987) [hereinafter 1987 NPRM]
(“[T]o clarify [SSA’s] existing policy with respect to the weight which [the agency] place[s] on opinions of
treating sources and in response to certain Federal Circuit Court of Appeals decisions and other statements
regarding [agency] policy, [SSA is] setting forth [its] policy with respect to opinions of treating sources.”)
(emphasis added).
3
20 C.F.R. §§ 404.1527(c), 416.927(c) (2012). For ease of reference, this report uses “treating physician” and
“treating source” interchangeably; however, the treating physician rule also encompasses psychologists and
“other acceptable medical sources.” See 20 C.F.R. §§ 404.1502, 416.902 (2012).
4
See Appendix (“App.”) B: Analysis of SSA Data on Remand Rates by Federal Courts and the Appeals
Council, tbl. 9, p. A-8.
5
Id. at A-4 tbl.3.
6
Id. at A-3 - A-4 tbls. 2 & 3. Treating physician rule-related remands are a subcategory of the Opinion
Evidence Evaluation & Residual Functional Capacity (“OEE & RFC”) classification and represent the highest
percentage of remand frequency within that classification. The OEE & RFC classification is itself the most
frequently cited remand category. See id. at A-3 tbl.2.
2

Additionally, dramatic changes in the American health care system over the past
twenty years independently call into question the ongoing efficacy of the special deference
afforded opinions by treating physicians. Long-term continuity of care between patient and
physician is no longer the norm due to several interrelated factors, including: the rise of
managed care and concomitant disruptions in continuity of care; changes in the practice of
medicine (i.e., increasing specialization and declining numbers of primary care physicians, as
well as the rise of medical personnel, such as nurse practitioners (“NPs”), physician assistants
(“PAs”), and licensed clinical social workers (“LCSWs”) acting as patients’ primary care
providers); patient consumerism (largely through the Internet) leading to increasing voluntary
changes in practice groups or physicians; and, other societal and demographic changes. As
one scholar noted: “What was traditionally (and perhaps mythically) considered a dyadic
relationship between the clinician and health care consumer has been potentially jeopardized
by a new triangular interaction: the patient-provider-managed care/health insurance
bureaucracy.”7 Thus, whatever may be said for the longevity of physician-patient
relationships two decades ago, it is simply not the norm today.
SSA commissioned the Administrative Conference of the United States
(“Administrative Conference” or “Conference”) to study and recommend improvements to
adjudication of the SSDI and SSI programs, with a particular focus on exploring the high
remand rates from federal courts under the treating physician rule. 8 This report represents a
collaborative effort between the Office of the Chairman of the Administrative Conference
and the Conference’s consultants on this project, Dean Harold J. Krent and Professor Scott
Morris. During the course of this study, we (1) reviewed statutes, regulations, and other
publicly available information relating to SSA’s disability benefits programs that relate to the
treating physician rule; (2) analyzed SSA-provided data in order to identify the impact of this
rule at both the administrative level and in the federal courts; (3) reviewed federal case law,
law review articles, and treatises addressing SSA’s treating physician rule; (4) documented
the changing nature of the U.S. health care system through review of medical journals,
federal and non-profit statistical resources, and other publicly available sources; and (5)
conducted legal research on the evidentiary weight afforded the opinions of treating sources
in other federal and state statutory disability benefits programs. Our review and research
were supplemented by a questionnaire that was sent to both the National Organization of
Social Security Claimants’ Representatives (“NOSSCR”) and the National Association of
Disability Representatives (“NADR”), as well as by interviews of SSA officials, ALJs,
decision writers, and attorneys.

7

Jeffrey M. Borkan, Examining American Family Medicine in the New World Order – A Study of 5 Practices,
48 J. FAM. PRAC. 620 (Aug. 1999).
8
As originally conceived, the Conference’s study of the treating physician rule was to be part of a broader study
on the SSDI and SSI programs. See, e.g., SSA Disability Administration: Disability Adjudication Project
Outline,
available
at
http://www.acus.gov/sites/default/files/documents/Final-SSA-Outline-Approv.5_24_12.pdf (last accessed Feb. 7 2013). After the project started, however, it was decided that the treating
physician rule aspect of the project would be addressed in this stand-alone report. Findings from the
Conference’s broader SSA adjudication study is discussed in a separate report. See ADMIN. CONFERENCE OF
THE U.S., ACHIEVING GREATER CONSISTENCY IN SOCIAL SECURITY DISABILITY ADJUDICATION: AN EMPIRICAL
STUDY AND SUGGESTED REFORMS (2013), available at http://www.acus.gov/sites/default/files/documents/
Achieving_Greater_Consistency_Final_Report_4-3-2013.pdf (last visited Apr. 3, 2013).[hereinafter 2013 SSA
Disability Adjudication Report].

2

This report provides background data and analysis to SSA should it choose to revisit
the continued efficacy of the treating physician rule. Part I of this report begins with a brief
description of the administrative process and legal standards governing the adjudication of
Social Security disability benefits claims. This Part provides an overview of the origins of
the treating physician rule and the promulgation of regulatory standards in 1991. Part II then
discusses the widely divergent standards used by federal courts in various circuits when
reviewing cases involving the treating physician rule, with particular attention to the
substantial evidence standard of review. Part III details the substantial changes in the
delivery of health care in the United States over the last several decades and discusses how
this evolution has largely undermined one of the primary assumptions underlying the treating
physician rule. Part IV summarizes the results from an empirical analysis of SSA-provided
data relating to the treating physician rule and remand rates with respect to both the Appeals
Council and federal courts. Part V shows how the treating physician rule works in the
context of other federal and state disability benefits programs, and discusses the perspective
of claimant representative organizations. The report concludes with Part VI, which lays out
guiding principles and options for SSA as it considers the continuing efficacy of the treating
physician rule.
I.

SSA DISABILITY BENEFITS PROGRAMS: ADJUDICATION PROCESS & LEGAL
STANDARDS

A. Disability Claim Adjudication Process
The Social Security Act created two programs—SSDI and SSI—to provide monetary
benefits to persons with disabilities who satisfy these programs’ requirements.9 Individuals
may qualify for regular payments from the federal government if, among other things, they
can show that they have an impairment that is disabling.10 The programs share the same
definition of disability: the inability “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months.”11 Every year, millions of people apply for these disability benefits, 12 and SSA
has created what may be the world’s largest adjudicative system to process these claims.13
The disability benefits adjudication process begins with the filing of an application
with a SSA field office, either in-person or online. Individuals seeking disability benefits
may file (and pursue) their own claims or they may choose to enlist the assistance of a
representative, who may or may not be an attorney. Once an application is received by the
SSA field office, (in most instances) the case is sent to a federally funded state Disability
Determination Service (“DDS”) for the initial steps in the adjudication process. In most
9

42 U.S.C. §§ 401(b), 1381 (2012).
42 U.S.C. § 423(d) (2012).
11
42 U.S.C §§ 423(d)(1)(A), 1382c(a)(3)(A) (2012).
12
In fiscal year 2011, over 3.2 million people applied for disability benefits. SSA’S FY 2011 PERFORMANCE
AND ACCOUNTABILITY REPORT 8 (2011), available at http://www.ssa.gov/finance/2011/Full%20FY%202011%
20PAR.pdf.
13
Securing the Future of the Disability Insurance Program: Hearing Before the Subcomm. on Soc. Sec. of the
H. Comm. on Ways & Means, 112th Cong. (June 27, 2012) (statement of Michael Astrue, Comm’r, Soc. Sec.
Admin.) [hereinafter Astrue June 2012 Testimony], available at http://www.ssa.gov/legislation/testimony_
062712.html; see also Heckler, 461 U.S. at 461 n.2 (quoting JERRY L. MASHAW ET AL., SOCIAL SECURITY
HEARINGS AND APPEALS xi (1978)).
10

3

states, a team consisting of a state disability examiner and a state agency medical and/or
psychological consultant makes an initial determination of eligibility on behalf of SSA. 14
The DDS team may gather medical documents and/or order an examination by a contracting
physician or psychologist, termed a consultative examination, to make a decision regarding
the claimant’s disability status.15 If an individual’s claim is denied, (in most states) the
claimant may seek reconsideration16 by another DDS team, composed of a different examiner
and medical or psychological consultant.17 As a whole, about forty percent of disability
claims are allowed at the initial and reconsideration steps.18
If the claim is denied again, the individual may appeal his or her case to a SSA ALJ,
and about forty percent of those whose claims were denied do in fact appeal.19 The ALJ
reviews the case de novo and may either award benefits prior to the hearing, based on the
record, or decide the claim after an adjudicative hearing.20 For the first time in the process,
an oral hearing is provided. No deference is afforded the DDS determination, and the ALJ
may consider additional medical examinations, vocational or medical expert testimony, as
well as question the claimant or other witnesses personally.21 In contrast to most
administrative adjudications, the agency is not represented at the hearing, 22 while the
claimant is represented in roughly eighty percent of the cases at the ALJ hearing level,
predominantly by attorneys. The percentage of cases in which claimants are represented has
soared in the past thirty years,23 though ALJs have the duty to develop the record where
needed, irrespective of whether the claimant is represented.24 ALJs currently determine that
disability is warranted in roughly fifty percent of the cases decided.25
14

42 U.S.C. §§ 405(b), 1383(c)(1) (2012).
Charles H. Koch, Jr., The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security
Administration's Appeals Council, 17 FLA. ST. U. L. REV. 199, 219 (1990).
16
Astrue June 2012 Testimony, supra note 13; 20 C.F.R. §§ 404.907, 416.1407 (2012).
17
Astrue June 2012 Testimony, supra note 13; 20 C.F.R. §§ 404.909, 416.1409 (2012).
18
For more specific figures and differences in allowance rates among the states, see SOCIAL SECURITY
ADVISORY BOARD, ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 44 fig. 39. (2012),
available at http:// www.ssab.gov/Publications/Disability/GPO_ Chartbook_FINAL_06122012.pdf [hereinafter
SSAB 2012 Report].
19
Astrue June 2012 Testimony, supra note 13; 42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A) (2012); 20 C.F.R. §§
404.929, 416.1429 (2012); see also RICHARD V. BURKHAUSER & MARY C. DALY, THE DECLINING WORK AND
WELFARE OF PEOPLE WITH DISABILITIES: WHAT WENT WRONG AND A STRATEGY FOR CHANGE 50 (American
Enterprise Institute 2011) (statistic based on 2000 data).
20
Astrue June 2012 Testimony, supra note 13; 42 U.S.C. §§ 405(b), 1383(c) (2012); 20 C.F.R. §§ 404.929,
416.1429 (2012).
21
20 C.F.R. §§ 404.929-404.965; 416.1429-416.1455 (2012).
22
The Veterans Administration is the other most notable example. See, e.g., Hodge v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1998) (in discussing “the historically non-adversarial system of awarding benefits to veterans”
stating that “[t]his court and the Supreme Court both have long recognized that the character of the veterans’
benefits statutes is strongly and uniquely pro-claimant”); see also Henderson v. Shinseki, 131 S. Ct. 1197, 1200,
1206 (2011) (referring to proceedings before the VA as “ex parte,” “informal[,] and nonadversarial”).
23
The percentage of claimants represented by attorneys at ALJ hearings has nearly doubled since 1977 (from
about 35% to 76%), while the use of non-attorney representatives has also experienced a steady increase since
2007. SSAB 2012 Report, supra note 18, at 60 fig. 55.
24
E.g., Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002) describing the duty of an ALJ to “fully and
fairly develop[] the facts of the case”); Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012) (same); Thornton
v. Schweiker, 663 F.2d 1312, 1316 (5th Cir. 1981) (same); see also Richardson v. Perales, 402 U.S. 389, 410
(1971) (noting ALJ duty to investigate facts and develop arguments both for and against granting benefits).
25
Data provided by SSA show that fully favorable allowance rates have dropped to 50% (data on file with
ACUS). This rate is down from 60%. See SSAB 2012 Report, supra note 18, at 12 fig. 7. There is no
definitive way to measure whether ALJs or state DDS systems measure “disability” more accurately. For one
15

4

A claimant may appeal an ALJ decision to the Appeals Council, which has
discretionary authority to determine which cases to review.26 The Appeals Council will
review a case if: (1) the ALJ committed an abuse of discretion; (2) there is an error of law;
(3) the ALJ’s decision was not supported by substantial evidence; (4) there is a broad policy
issue that might affect the public interest; or (5) new and material evidence is submitted and it
relates to the period on or before the ALJ hearing decision and the record shows the ALJ’s
actions, findings, or conclusion are contrary to the weight of the evidence.27 The Appeals
Council may affirm, modify, reverse, or remand the ALJ’s decision.28 If the Appeals Council
denies review, the ALJ’s decision becomes the final agency action.29
A claimant who is finally denied by SSA—either as a result of the denial of Appeals
Council review or the affirmance of an adverse ALJ decision—may seek judicial review in a
federal district court based on the full administrative record and subject to the substantial
evidence review standard.30 In the context of judicial review of Social Security disability
benefits programs, the Supreme Court has explained that substantial evidence means “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”31 If the reviewing court determines that either substantial
evidence does not support the agency’s determination, or the court cannot determine whether
substantial evidence even exists, it can reverse and remand the decision to the agency, either
for an award of benefits, or for further proceedings.32
B. Standards for Evaluating Medical Evidence
Consideration of medical opinions is intrinsic to the administrative determination of
claims for SSDI or SSI disability benefits. During the claim adjudication process, claimants
generally have the burden of proving that they qualify as disabled.33 Part of this proof
involves submission of medical “evidence that [SSA] can use to reach conclusions about [the

intriguing study concluding that ALJs are more likely to get it “right,” see Hugo Benitez-Silve, Moshe
Buchinsky & John Rust, How Large Are the Classification Errors in the Social Security Disability Award
Process? 33 (Nat’l Bureau of Econ. Research, Working Paper No. 10219, 2004).
26
20 C.F.R. §§ 404.967-404.968, 416.1467-416.1468 (2012). The vast majority of these cases resulted from
actions related to appeals by claimants, but a small percentage represent “own motion review” (i.e., bureau
protests and pre-effectuation review of fully favorable cases) of benefit grants. Data from SSA show that in
FY2011, the Appeals Council processed 126,992 requests for review, whereas it processed 4351 cases under
own motion review (data on file with ACUS). In FY2012, the Appeals Council processed 166,020 requests for
review, while processing 7598 cases under own motion review (same).
27
20 C.F.R. §§ 404.970, 416.1470 (2012).
28
20 C.F.R. §§ 404.979, 416.1479 (2012).
29
20 C.F.R. §§ 404.966(b), 416.1466(b) (2012).
30
42 U.S.C. §§ 405(g), 1383(c)(3) (2012); 20 C.F.R. §§ 404.981, 416.1481 (2012). A claimant must exhaust all
administrative remedies before appealing to federal court. The claim is appealable in federal court only after the
Appeals Council has issued a decision or has refused to review the case.
31
Richardson v. Perales, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
32
42 U.S.C. § 405(g) (2012). Historically, federal district courts have reversed very few agency actions. In
FY1995 – FY2010, the average reversal rate was just over 5%. See SSAB 2012 Report, supra note 18, at 70 fig.
65b. Of the remaining cases, district courts affirm about half of SSA’s decisions, and remand the other half to
the agency for further proceedings. Id.
33
20 C.F.R. §§ 404.1512(a), 416.912(a) (2012) (“In general, you have to prove to us that you are blind or
disabled.”).

5

claimant’s] medical impairment(s)”34 and includes laboratory findings, medical history,
opinions, and statements about treatment received.35 Normally, when evaluating this
evidence, ALJs and other agency decision makers must give the treating physician’s opinion
“controlling weight.”36 What is “controlling weight”? How does SSA weigh evidence? The
following part describes the existing statutory and regulatory standards governing these
issues.
1. Social Security Act
The Social Security Act empowers SSA to “adopt reasonable and proper rules . . . to
regulate and provide for the nature and extent of proofs and evidence” to establish entitlement
to disability benefits.37 As the Supreme Court has emphasized on several occasions, this
statutory authority is “exceptionally broad.” 38 The Commissioner thus has wide latitude to
issue regulations establishing the nature and extent of evidence, which form the basis for
adjudicating disability claims.
Disability, in turn, is defined under the Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.”39 The claimant must prove his or her
disability by “medical and other evidence . . . as the Commissioner . . . may require.” 40
Evidence includes:
medical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of a medical
impairment [and] . . . would lead to a conclusion that the individual is under a
disability. Objective medical evidence of pain or other symptoms established
by medically acceptable clinical or laboratory techniques . . . must be
considered in reaching a conclusion as to whether the individual is under a
disability.41
The Act charges SSA with considering all of the medical evidence in the case record,
and developing a complete medical history of the past year whenever it denies a disability
claim.42 The statute further states that SSA must “make every reasonable effort to obtain
from the individual’s treating physician (or other treating health care provider) all medical
evidence” necessary to making a disability determination before evaluating medical evidence
from a consultative source.43 While the Act thus states that SSA must consider a treating

34

Id.
20 C.F.R. §§ 404.1512(b)(1)-(2), (d)(2), 416.912(b)(1)-(2), (d)(2) (2012).
36
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (2012).
37
42 U.S.C. § 405(a) (2012).
38
See, e.g., Bowen v. Yuckert, 482 U.S. 137, 145 (1987) (quoting Heckler, 461 U.S. at 466 (quoting Schweiker
v. Gray Panthers, 453 U.S. 34, 43 (1981))).
39
42 U.S.C. §§ 416(i)(1)(A), 423(d)(1) (2012); see also, 42 U.S.C. § 1382c(a)(3)(A) (2012).
40
42 U.S.C. § 423(d)(5)(A) (2012).
41
Id.
42
Id.
43
Id.
35

6

physician’s evidence first, it does not mandate the weight that SSA must give to that
evidence.44
2. Pre-1991: Federal “Common Law” Governs Evaluation of Treating Physician
Opinions
The treating physician rule traces its origins to the 1980s when SSA, the federal
courts, and, to a lesser extent, Congress engaged in institutional battles over the proper
evaluation and weight to afford different types of medical evidence. Several legal scholars
have described SSA, in the early 1980s, as “adopting a series of controversial policies and
practices to restrict benefits,”45 one of which was to rely on the agency’s own consulting
medical examiners, rather than the claimant’s treating physician. 46 Both the courts and
Congress decided to step in—federal courts, by creating a treating physician rule, and
Congress, by passing a law requiring SSA to establish standards governing the use of
consulting examiners.47
The treating physician rule thus began as a rule “developed by Courts of Appeals as a
means to control disability determinations by [ALJs] under the Social Security Act.”48
Nearly every federal circuit gave more weight to a treating physician than a non-treating
source, although courts disagreed on precisely what was needed to refute a treating source’s
opinion. For example, the Fifth, Ninth, Tenth, and Eleventh Circuits gave “substantial,”
“great,” or “considerable” weight to the treating physician “unless good cause was shown to

44

When enacting legislation to amend the Act in 1984, Congress made clear “that it did not intend to alter in any
way the relative weight that the Secretary places on reports received from treating physicians.” 1991 Final
Rules, supra note 2, at 13,016 (citing S. REP. NO. 98-466 (1984)).
45
Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 TEX. L. REV. 499, 544 (2011)
[hereinafter, Levy, Agency-Specific Precedents].
46
Richard E. Levy, Social Security Disability Determinations: Recommendations for Reform, 1990 BYU L.
REV. 461, 501 (1990) [hereinafter Levy, Disability Determinations]; see also H. COMM. ON GOVERNMENT
OPERATIONS, 99TH CONG., CONSULTATIVE EXAMINATIONS INVESTIGATION, H.R. REP. NO. 99-981, at 3 (1986)
(noting SSA’s then-current practice of using of consultative examinations instead of original medical records).
47
Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, § 9, 98 Stat. 1794, 1804-05
(1984) (codified at 42 U.S.C. §§421(j), 423(d)(5)(b) (2012)) [hereinafter Disability Benefits Reform Act].
48
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003) [hereinafter Black & Decker]. Once it is
determined that “an impairment exists, the opinions of the treating physician are entitled to substantially greater
weight than the impressions of a doctor who sees the claimant only once.” Rachel Schneider, A Role for the
Courts: Treating Physician Evidence in Social Security Disability Determinations, 3 U. CHI. L. SCH.
ROUNDTABLE 391, 396 n.31 (1996) (quoting Selig v. Richardson, 379 F. Supp. 594, 604 (E.D.N.Y. 1974)).
Other cases dating from the late 1950s through early 1970s also afforded the treating physician’s opinions
special weight. See Floyd v. Finch, 441 F.2d 73, 107 (6th Cir. 1971) (“[T]he evidence of a physician who has
been treating such applicant over many years and whose conclusion is that he is totally incapacitated, is
substantial evidence as compared with the evidence of physicians who have examined the claimant on one
occasion, and whose reports are inconclusive and not contradictions of unqualified evidence that claimant is
totally and permanently disabled.”) (emphasis added); Branham v. Gardner, 383 F.2d 614, 630 (6th Cir. 1967)
(“The expert opinions of plaintiff’s treating physicians as to plaintiff’s disability and inability to engage in any
substantial gainful employment are binding upon the referee if not controverted by substantial evidence to the
contrary.”); Heslep v. Celebrezze, 356 F.2d 891, 894 (4th Cir. 1966) (“While the attending physician’s opinion
that [the claimant] was disabled . . . may not be binding on the Secretary, [the court] think[s] it is entitled to
substantial weight.”); Celebrezze v. Walter, 346 F.2d 156, 156 (5th Cir. 1965) (affirming a district court’s
decision to set aside the Secretary’s finding of no disability because the claimant’s personal physician offered
“ample positive proof of disability”); Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959) (same).

7

the contrary.”49 Good cause existed when the medical testimony had been “brief, conclusory,
and unsupported by medical evidence,”50 although specific reasons for ignoring the opinion
had to be set forth. Similarly, the Eighth Circuit afforded substantial weight to the treating
source opinion unless it was “unsupported by the evidence” or “merely conclusory.”51 The
Fourth and Second Circuits’ formulation of the rule was even more deferential, essentially
creating a rebuttable presumption in favor of the treating physician.52 On the other hand, the
First and Seventh Circuits gave no greater weight to the opinions of treating physicians than
those of other non-treating medical professionals.53 Thus, while the circuits agreed in
principle that the opinion of treating physicians was entitled to deference, the standard for
weighing or measuring that deference varied substantially among the circuits.
Against this varied backdrop of judicially created “common law” on special
preference for treating physician opinions, SSA frequently refused to acquiesce in specific
judicial decisions—even on an intra-circuit basis—and continued to apply its own internal
agency policies.54 SSA justified its non-acquiescence by a need for national uniformity in
carrying out the Social Security disability programs.55 Federal courts reacted in two ways:
first, by “holding that SSA decisions rejecting the treating physician’s opinion and relying on
a consulting examiner were not supported by substantial evidence”56 and, second, by chiding

49

Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987) (citing Turner v. Heckler, 754 F.2d 326, 329 (10th Cir.
(1985)) (giving substantial weight to the opinion); Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (same);
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (giving “greater weight” to the opinion); Floyd v.
Bowen, 833 F.2d 529, 531 (5th Cir. 1987) (“unless good cause can be shown to the contrary, a treating
physician’s opinion is entitled to considerable weight”); Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)
(treating physician’s opinion is entitled to considerable weight, unless good cause is shown to the contrary; good
cause can be shown by when the physician’s statements are brief and conclusory, or otherwise being
unsupported by the evidence).
50
Frey, 816 F.2d at 513 (citing Allison v. Heckler, 711 F.2d 145, 148 (10th Cir. 1983)).
51
Turpin v. Bowen, 813 F.2d 165, 170-71 (8th Cir. 1987).
52
Schisler v. Heckler, 787 F.2d 76, 85 (2d Cir. 1986) (“a treating physician’s opinion on the subject of medical
disability is binding on the factfinder unless contradicted by substantial evidence”) [hereinafter Schisler I];
Coffman, 829 F.2d at 517 (“[I]n the Fourth Circuit, [the] rule requires that the opinion of a claimant’s treating
physician be given great weight and may be disregarded only if there is persuasive contradictory evidence.);
Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986) (“A treating physician’s testimony is ignored only if
there is persuasive contradictory evidence.”); Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (the
opinion of the claimant’s treating physician “may be disregarded only if there is persuasive contradictory
evidence”).
53
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (holding that opinions of the
claimant’s physicians are “not entitled to greater weight merely because they were treating physicians”); see
also Stephens v. Heckler, 766 F.2d 284 (7th Cir. 1985), which states:
Experience and knowledge of this case weigh on the side of the treating physician, expertise
and knowledge of similar cases on the side of the consulting specialist. How these weigh in
any particular case is a question for the Secretary’s delegate, subject only to the rule that the
final decision must be supported by “substantial evidence.”
Id. at 289.
54
Levy, Disability Determinations, supra note 46, at 503 (describing SSA’s policy of non-acquiescence); see
also Schisler v. Sullivan, 3 F.3d 563, 565 (2d Cir. 1993) [hereinafter Schisler III] (“HHS chose not to acquiesce
in [the court’s treating physician] rule.”).
55
See Levy, Disability Determinations, supra note 46, at 504.
56
Levy, Agency-Specific Precedents, supra note 45, at 545.

8

SSA for “its failure to seek a uniform national rule at the appellate level by seeking Supreme
Court review.”57
Schisler Cases
The problem of various circuit court standards, compounded by the absence of a
national uniform regulation governing this area, came to a head in a series of Second Circuit
cases—Schisler v. Heckler (“Schisler I”) and Schisler v. Bowen (“Schisler II”). Schisler I
involved a state-wide (New York) class action challenging SSA’s benefits termination
process and newly imposed “current disability” standard.58 The district court had ordered
that class members’ termination decisions be remanded to SSA for re-adjudication under the
proper legal standard.59
On appeal, the Schisler I class argued that the remand order should include an
injunction compelling SSA to follow the Second Circuit’s treating physician rule when readjudicating their individual claims.60 That rule, which had been the law of the circuit for
five years, held that treating physician opinions were “binding on the fact-finder unless
contradicted by substantial evidence,” and, even then, were still to be afforded “some extra
weight because the treating physician is usually more familiar with a claimant’s medical
condition than other physicians.”61 The court noted that, while SSA had not formally
announced a policy of non-acquiescence toward the Second Circuit’s treating physician rule,
cases reversing SSA benefits determinations at the district court and appellate level were
nonetheless “almost legion.”62 Highlighting the institutional struggle at play, the Second
Circuit chided SSA for its approach: “While SSA’s claim that non-acquiescence is often
necessary in order to have a uniform national rule at the administrative level is
understandable, its failure to seek a uniform national rule at the appellate level by seeking
Supreme Court review is not.”63
SSA argued that, while not set down in publications or instructions to ALJs, its
informal policy on the evaluation of treating physician opinions was consistent with the
Second Circuit’s formulation of the rule.64 While accepting SSA’s representations “at face
value,” the court noted “the historical record” of reversals in the circuit and “the failure of
SSA to inform its adjudicators of its true policy.”65 The court thus held that, on remand, the
district court should issue an order compelling SSA to publish guidance for its adjudicators at
all levels that instructed them to follow the Second Circuit’s treating physician rule.66

57

Schisler I, 787 F.2d at 83; see also Schisler v. Bowen, 851 F.2d 43, 44 (2d Cir. 1988) [hereinafter Schisler II]
(“[T]he Secretary had never sought to challenge this rule by petitioning for certiorari in the Supreme Court.”).
58
Schisler I, 787 F.2d at 78.
59
Id. at 79.
60
Id. at 81.
61
Id.
62
Id. at 82 (internal quotations omitted).
63
Id. at 82-83. SSA never sought review of the various circuits’ treating physician rules in the Supreme Court.
See Levy, Disability Determinations, supra note 46, at 506 (“To some observers, it appeared that SSA chose
[not to] risk an adverse decision by the Supreme Court.”)
64
Schisler I, 787 F.2d at 83.
65
Id. at 84. The court also noted: “Absent such instructions, the danger that those adjudicators will apply the
wrong legal rule to the facts will be great.” Id.
66
Id.

9

Two years later, in Schisler II, the parties were back in the Second Circuit on appeal
from remand proceedings. On remand, SSA proffered a draft Social Security Ruling (“SSR”)
entitled “Development and Consideration of Medical Evidence” to the district court as a
means of complying with Schisler I.67 In this twelve-page SSR, SSA provided a section with
background information (i.e., legislative history and definitions), a section addressing
consultative examinations, and, lastly, a section addressing the treating physician rule.68
With respect to this rule, SSA proposed a formulation that made the weight afforded treating
physician opinions contingent on consistency with other medical reports and clinical or
laboratory diagnostic evidence.69 The district court, however, largely rejected SSA’s draft
SSR on the grounds that it was “rambling and ambiguous” and “fail[ed] to reflect, in
significant respects, the treating physician rule recognized and effective here and to be in
place nationwide.”70 The district court then substantially rewrote the SSR—including,
among other things, making treating physician opinions “binding” on adjudicators absent
substantial contradictory evidence—and ordered SSA to comply with the revised version.71
On appeal, SSA argued that the district court exceeded its authority by failing to accord
sufficient deference to the agency’s administrative ruling embodied in its draft SSR.72 The
Schisler II panel disagreed, and affirmed the district court’s version of the SSR with only
slight changes.73 The court reasoned that its remand order in Schisler I was narrowly tailored
and directed SSA to use administrative judgment only insofar as selecting the best method of
informing ALJs and other adjudicators of its adoption of the Second Circuit’s treating
physician rule.74 Rulemaking, the court emphasized, was the more appropriate forum for
modifying the contours of the treating physician rule:
[T]he remand in this case was not a proper occasion for the [Health and
Human Services] Secretary to issue a regulation covering subjects not at issue
in this litigation or to elaborate on the treating physician rule in ways not
expressly authorized by our caselaw. To the extent the Secretary seeks to
issue rulings covering such subjects or to elaborate on that rule, he should
resort to the customary administrative processes.75
The court then provided its own approved version of the SSR.76 After Schisler II, SSA was
left with the administrative choice of whether to simply publish the Second Circuit’s SSR on
the treating physician or promulgate its own version of a uniform rule.
3. 1991 - Present: SSA’s Regulatory Approach to the Treating Physician Rule
As of the late 1980s, SSA was at a crossroads with respect to the evaluation of
medical evidence when adjudicating Social Security disability benefits, particularly with
respect to the opinions of treating physicians. The agency was buffeted by several competing
institutional considerations. On one side were the federal courts. While compliance with the
67

Schisler II, 851 F.2d at 44.
Id.
69
Id.
70
Id. at 44-45.
71
Id.
72
Id. at 45.
73
Id. at 45-46.
74
Id. at 45.
75
Id.
76
Id. at 46-47.
68

10

Schisler II order posed the most immediate issue, the varying federal “common law” versions
of the treating physician rule among the circuits made uniform administration of a national
program problematic. On another side was Congress. The Social Security Disability
Benefits Reform Act of 1984 compelled SSA to issue regulations establishing standards for
consultative examinations and revamping consideration of medical evidence.77 The Senate
Finance Committee, when it considered the bill requiring SSA to promulgate those
regulations, stated “that it did not intend to alter in any way the relative weight that the
Secretary places on reports received from treating physicians”78; however, it was clear that
Congress generally did not approve of SSA’s non-acquiescence policy.79
Against this backdrop, in April 1987, SSA issued a notice of proposed rulemaking
(“NPRM”) on various aspects of evaluation of medical evidence, including consultative
examinations and treating physicians.80 With respect to the treating physician rule, SSA
characterized the proposed rule as having a dual purpose: (1) “to clarify [its] existing policy
with respect to the weight which [it] place[s] on opinions of treating sources,” and (2) to
“respon[d] to certain Federal Circuit Court of Appeals decisions[, including Schisler I,] and
other statements regarding [SSA’s] policy.”81 In terms of regulatory substance, SSA
proposed “to revise [20 C.F.R.] §§ 404.1527 and 416.927 to clearly indicate those instances
when a treating source opinion will be conclusive, when it will be given preference, and
when neither conclusiveness nor preference will be granted.”82 Opinions of treating
physicians, under the proposed rule, would be “conclusive” on medical disability issues so
long as “fully supported” by medically acceptable laboratory or diagnostic findings and “not
inconsistent with the other substantial medical evidence of record.”83 And, if the treating
source’s opinions were inconsistent with other medical evidence, SSA nonetheless proposed
to afford “some extra weight” to that treating opinion in resolving such inconsistency. 84 No
mention was made in the text of the proposed rule (or elsewhere in the NPRM) to giving
special preference to treating physician opinions because of their presumed longitudinal
perspective on claimants’ medical impairments.
Four years later, in August 1991, SSA issued final rules entitled, “Standards for
Consultative Examination and Existing Medical Evidence.”85 The preamble discussion of the
treating physician rule in the 1991 Final Rules is notable in several respects. First, SSA
reiterated that judicial decisions from various circuits (including, by that point, Schisler II)
“pointed to a need for a clear policy statement that would encourage uniformity of
77

Disability Benefits Reform Act, supra note 47.
1987 NPRM, supra note 2, at 13,016 (citing S. REP. NO. 98-466, at 26 (1984)).
79
The 1984 legislation originally required SSA to comply with judicial decisions on the treating physician rule,
but that provision was withdrawn from the final bill when SSA indicated that it would abandon its nonacquiescence policy. See Levy, Disability Determinations, supra note 46, at 506 n.249; H.R. CONF. REP. NO.
98-1039, at 36-38 (1984), reprinted in 1984 U.S.C.C.A.N. 3080, 3094-96 (conferees noted that, while the
provision prohibiting non-acquiescence had been dropped, they still had constitutional objections and urged
SSA to confine such practice to limited circumstances).
80
1987 NPRM, supra note 2, at 13,016; see also 1991 Final Rules, supra note 2, at 36,934 (“[J]udicial decisions
in several circuits pointed to a need for a clear policy statement that would encourage uniformity of adjudication
and provide the public and the courts with a definitive explanation of our policy on weighing treating source
opinions.”).
81
1987 NPRM, supra note 2, at 13,016.
82
Id.
83
Id. at 13,022, 13,030.
84
Id.
85
1991 Final Rules, supra note 2.
78

11

adjudication and provide the public and the courts with a definitive explanation of our policy
on weighing treating source opinions.”86 SSA observed that, while circuit courts varied in
their approaches to judicially created treating physician rules, the majority of courts agreed
on two fundamental principles: (1) treating source opinions have “special intrinsic value”
because of the relationship the source has with the claimant; and (2) if the opinion is rejected,
good reasons should be provided for doing so.87 SSA stated that the final rules had been
drafted with these principles in mind.88
Second, unlike the 1987 NPRM, SSA emphasized in the preamble to the final rules
that treating source opinions warranted controlling weight because such medical
professionals typically have detailed, long-term perspectives on their patient-claimants’
medical impairments.89 Sections 404.1527 and 416.927 of the final rule read as follows, in
pertinent part:
Generally, we give more weight to opinions from [the claimant’s] treating
sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If [SSA] find[s] that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the claimant’s] case record,
[SSA] will give it controlling weight. . . . [SSA] will always give good reasons
in [its] notice of determination or decision for the weight [it] give[s the
claimant’s] treating source’s opinion.90
As SSA emphasized when describing this provision: “Essentially, once [the agency] ha[s]
determined that an opinion is from a treating source, it is entitled to special deference.”91
Third, SSA noted that many commenters were critical of certain aspects of the
approach SSA took in the 1987 NPRM concerning evaluation of treating physician
opinions.92 As a result, SSA noted that it had revised and expanded §§ 404.1527 and 416.927
of the final rules to clarify its policy on weighing treating physician evidence and to respond
to such comments. For example, one of the main concerns was that SSA’s “proposed rules
did not require adjudicators to articulate reasons for rejecting any treating source opinions.”93
SSA responded by noting that “unsupported opinions cannot be determinative. However,
[SSA] will never disregard a treating source’s opinion . . . [and will] accord their opinions
greater weight—even when they are unsupported or contradicted—than such opinions would
otherwise be entitled to if they came from a nontreating source.”94 In the final rule, SSA
86

Id. at 36,934.
Id.
88
Id.
89
Id. at 36,935.
90
Id. at 36,961, 36,969 (emphasis added) (codified at 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (1991)).
91
Id. at 36,937.
92
Id. at 36,934.
93
Id. at 36,950.
94
Id.
87

12

therefore directed its ALJs to give “good reasons” when the treating source opinion is not
ascribed “controlling weight.”95 The final rule also laid out five factors (and one catch-all
factor)—such as length and nature of treatment relationship, area of specialization,
supportability of opinion—for adjudicators to use when weighing treating source opinions
that are not given controlling weight.96
Another concern raised by commenters involved SSA’s original proposal to give
treating physician opinions “some extra weight” when they conflict with other medical
evidence.97 Although SSA had adopted that language directly from Schisler I, the agency
decided in the final rule to eliminate that language and to articulate the specific process by
which ALJs would evaluate and weigh medical opinions instead.98 The final rule thus
describes a hierarchy of opinions—treating source opinions being given the most deference,
non-treating, examining sources being given less deference, and non-treating, non-examining
sources being given the least deference.99
Lastly, several commenters suggested that the definition of “treating source” in the
1987 NPRM was unclear and overly restrictive.100 SSA, in the final rules, thus modified the
language in the definition of “treating source.”101 The final regulation provides that a
“treating source” means a claimant’s “own physician or psychologist who has provided [him
or her] with medical treatment or evaluation and who has or has had an ongoing treatment
relationship with [him or her].”102 The definition goes on to clarify an ongoing relationship
with an accepted source: one whom the claimant sees or has seen “with a frequency
consistent with accepted medical practice for the type of treatment and evaluation required
for [the claimant’s] medical condition(s).”103
While the substance of the treating physician rule has remained unchanged following
promulgation of the 1991 final rules, there have been several administrative-type revisions
over the intervening years.104 Most notably, in March 2000, the phrase “acceptable medical
source” was added to the definition of “treating source” to simplify and clarify terms for
medical used across all regulatory provisions.105 The revised definition provided, in pertinent
95

Id.; see also id. at 36,951 (SSA “will always provide an explanation in [its] notice of determination or
decision of [the agency’s] reason why [it] ha[s] not adopted a treating source’s opinion.”).
96
Id. at 36,961, 36,969 (codified at 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6) (1991)). Specifically,
these factors are: (1) “length of the treatment relationship and the frequency of examination;” (2) “nature and
extent of the treatment relationship;” (3) “supportability” of the opinion by other evidence, particularly medical
signs and laboratory findings; (4) “consistency” of the opinion with the rest of the record; (5) “specialization” of
the medical source; and (6) any other relevant factors. Id.
97
Id. at 36,951.
98
See generally, id.
99
Id. at 36,953.
100
Id. at 36,938.
101
Id.
102
Id. at 36,954, 36,963 (codified at 20 C.F.R. §§ 404.1502, 416.902 (1991)).
103
Id. The final rule did not establish any standard for the frequency with which a claimant must see his or her
physician for that physician to be considered a treating source—the visits may be few or have happened with
long intervals in between. See id.
104
For a comparison between the regulations as they originally existed and how they exist today, see App. C:
Comparison Between Selected Provisions of the 1991 and Current Regulations Relating to the Treating
Physician Rule, pp. A-12 - A-13.
105
See Soc. Sec. Admin., Federal Old-Age Survivors, and Disability Insurance and Supplemental Security
Income for the Aged, Blind, and Disabled; Evaluating Opinion Evidence; Final Rules, 65 Fed. Reg. 11,866,
11,867 (Mar. 7, 2000) (codified at 20 C.F.R. §§ 404.1502, 416.902 (2000)). The term “acceptable medical

13

part: “Treating source means your own physician, psychologist, or other acceptable medical
source who provides you with . . . medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with you.” “Acceptable medical sources,” in turn, referred
to the limited set of medical professionals who could provide evidence of a medically
determinable impairment; in addition to physicians and psychologists, “accepted” medical
sources included osteopaths and optometrists (for the measurement of visual acuity).106 In
subsequent rulemakings, SSA added podiatrists and speech-language pathologists to the list
of “acceptable medical sources” (2000), and expanded the situations in which optometrists
would be considered an “accepted” source of medical evidence (2007).107
In retrospect, while the Schisler II decision encouraged creation of the 1991
regulation,108 SSA believed that articulation of a formal rule would help ALJs structure their
decisions, especially in a circuit court environment replete with varying standards. Given
that ALJs often confront a file abounding with reports and testimony from many different
physicians, focusing on a treating physician’s report or testimony would provide ALJs not
only with a starting place for analysis, but an end point as well if nothing else in the file
outweighed the treating physician’s opinion.
II. DISTORTIONS IN APPLYING THE TREATING PHYSICIAN RULE
Even if the strong presumption afforded treating physician opinions was still justified,
application of the controlling weight formulation has resulted in skewed decision-making by
both courts and ALJs. If SSA thought the treating physician rule would simplify ALJ
decision-making, it was mistaken. ALJs have struggled to determine what evidence justifies
disregarding a treating source’s opinion, and reviewing courts have imposed high barriers.
As a result, ALJ decisions have become increasingly vulnerable to challenge.
A. The Sheer Number of Findings Required
An initial difficulty faced by ALJs is the number of discrete findings required in the
large volume of cases they adjudicate. Given the goal to complete between 500 and 700
hearings a year and then issue decisions, ALJs must assess and describe to reviewing courts’
satisfaction the weight of each medical opinion.109 Files often contain information from a
great number of medical sources. For instance, in Mitchell v. Commissioner of Social
Security,110 the ALJ considered: (1) the claimant’s testimony that he was in extreme pain; (2)
the opinion of one physician who administered a series of tests, concluding that the claimant
source” had been used for years in 20 C.F.R. §§ 404.1513(a), 416.913(a). Id. The purpose of the phrase’s
inclusion in the definition section of the treating physician rule was simply to facilitate the application of the
rules both “establish[ing] the existence of a medically determinable impairment” and assigning controlling
weight to the treating physician. Id.
106
Id. at 11,867; see also 20 C.F.R. §§ 1502, 416.902 (Apr. 1, 2000).
107
See Medical and Other Evidence of Your Impairments and Definition of Medical Consultant, 65 Fed. Reg.
34952 (June 1, 2000); Optometrists as “Accepted Medical Sources” to Establish a Medically Determinable
Impairment, 72 Fed. Reg. 9239 (March 1, 2007) (providing that licensed optometrists would be deemed
accepted medical sources “for purposes of establishing visual acuity”).
108
Schisler II, 851 F.2d at 45. The regulations note that the Second Circuit “expressly invited the Secretary” to
promulgate an extensive policy. 1991 Final Rules, supra note 2, at 36,934.
109
In 2007, SSA established guidelines suggesting that each ALJ issue 500 to 700 hearing decisions annually.
SSAB 2012 Report, supra note 18, at 57. In FY2010, about 28% of ALJs met the 500-decision goal, and about
3% of ALJS issued in excess of 700 decisions. Id. at 57 & fig. 52.
110
330 Fed. Appx. 563 (6th Cir. 2009).

14

had an IQ score of eighty-six and only had moderate impairment, but “lacked ‘the skills and
coping mechanism[s]” to sustain occupational pressure; (3) the opinion of another physician
who reviewed the first physician’s conclusions and agreed with most of his findings except
for his conclusion that the claimant lacked the capacity to work; (4) a third medical opinion
that evaluated the claimant and found a lower IQ score of sixty-one and found the claimant to
be severely impaired; (5) a fourth opinion which suggested that the author of the third
opinion had no medical basis for his conclusions; (6) a vocational expert who found a
hypothetical person matching the claimant’s qualifications and medical condition to have the
ability to engage in entry-level, unskilled jobs.111 To describe the weight afforded each
medical opinion in depth imposes a high burden on ALJs—perhaps surprisingly, the ALJ’s
decision was upheld in this case.
In contrast, in Newsome v. Astrue,112 the ALJ faced the task of weighing the following
medical evidence: (1) three different physicians’ reports dated between 2004 and 2007 from
the same hospital, all conflicting in their diagnoses of a seizure disorder; (2) a 2006 diagnosis
of alcoholic pancreatitis; (3) a physical therapist’s 2007 report declaring that the claimant was
“independent in his ambulation[,] that he never showed impaired judgment or confusion[,]
and was sociable and had no difficulty adjusting to his surroundings;” (4) a sixth medical
opinion, from 2005, diagnosing the claimant with seizure disorder, polyneuropathy, but only
accompanied by a normal CT scan and a MRI scan showing no abnormalities; (5) a
neurologist’s opinion noting no neuropathy and no abnormalities from the MRI, but later
diagnosing the claimant with (alcohol-related) seizure disorder, (sensory) polyneuropathy,
and headaches; (6) a 2006 Physical Residual Functional Capacity Assessment (“RFC”) report
diagnosing the claimant with alcohol-induced seizures, noting he could do light work, not
involving dangerous machinery; (7) a 2006 opinion from a NP stating that the claimant could
not work but then also indicating that the claimant could work at a sedentary level; (8) a 2006
diagnosis of a seizure disorder along with an opinion that the claimant had the ability to
concentrate long enough to complete a work task; (9) an eleventh opinion stating that the
claimant was indefinitely unemployable because of seizures, neuropathy, and abdominal
pain; and (10) a twelfth opinion stating that the claimant was not employable due to his
“abdominal pain, seizures, hip fracture, and alcohol abuse treatment.”113 The above list does
not even include the non-medical social worker’s opinion and the claimant’s subjective
testimony—all pieces of the record that the ALJ had to evaluate.114 The reviewing court
remanded for failure to weigh properly one of the above twelve medical opinions.115 Thus,
aside from the questionable efficacy of the treating physician rule, ALJs are faced with great
challenges in evaluating, weighing, and assessing the medical evidence in the record.116

111

Id. at 565-66.
817 F. Supp. 2d 111 (E.D.N.Y. 2011).
113
Id. at 117-22.
114
Id. at 117, 122.
115
Id. at 128, 140.
116
For an assessment of certain ALJ shortcomings in writing decisions, see STAFF OF S. COMM. ON HOMELAND
SEC. & GOVERNMENTAL AFFAIRS, PERMANENT SUBCOMM. ON INVESTIGATIONS, 112TH CONG., SOCIAL
SECURITY DISABILITY PROGRAMS: IMPROVING THE QUALITY OF BENEFIT AWARD DECISIONS, UNITED STATES
SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS (2012), available at http://www.hsgac.senate.
gov/subcommittees/investigations/hearings/social-security-administrations-disability-programs
[hereinafter
Minority Staff Report 2012]; see also 2013 SSA Disability Adjudication Report, supra note 8.
112

15

B. Difficulty in Meeting Threshold to Reject Treating Source Opinion
ALJs face additional challenges when attempting to articulate reasons for discrediting
the treating source opinion. If a treating source’s opinion on the issue of the nature and
severity of an impairment “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the
claimant’s] case record, [it is given] controlling weight” under SSA’s regulations.117 ALJs
must provide specific, non-conclusory reasons for rejecting a treating physician’s opinion. In
at least one circuit, an ALJ must give “clear and convincing” reasons for rejecting the
uncontroverted opinion of a claimant’s treating physician; if the treating physician’s opinion
is controverted, the ALJ’s reasons need only be “specific and legitimate.”118 Sometimes the
“controverting” opinion in and of itself serves as the specific and legitimate reason for
rejecting the treating source’s opinions.119 However, an ALJ more often will articulate other
“specific” reasons for rejecting a treating source—such as a claimant’s testimony or work
history—beyond a mere conflict in medical opinions.
The controlling weight test can deflect courts’ focus from the claimant’s medical
condition. Instead, reviewing courts seemingly review ALJ decisions to assess whether ALJs
have been sufficiently careful in discrediting treating source opinions. We trace below a
sampling of contexts in which courts have rejected ALJs’ justifications for withholding
controlling weight from evidence supplied by treating physicians.
For one example, ALJ reliance on other medical evidence in the record has been
deemed insufficient if the treating physician evidence is more recent. In Winters v.
Barnhart,120 the claimant submitted a report from her treating psychologist in June 2002 and
then was evaluated by an agency psychologist that October.121 Subsequently, the claimant
submitted an additional report from her treating psychologist in March 2003.122 The
examining psychologist’s mental assessment indicated that the claimant was “alert, fully
oriented, appropriately responsive, [and] able to understand and follow instructions [and] to
work within a set schedule.”123 The examining psychologist further acknowledged that the
claimant was “‘poorly tolerant of adult stress, pressure and responsibility and seems to relate
to others in an overly-dependent manner,’” but concluded that the claimant was not
disabled.124 In the March 2003 report, the claimant’s treating physician indicated that the
claimant’s diagnoses were unchanged and her condition was “‘chronic and only partially
responsive to current treatment,’” and opined that the claimant was unable to work in any
117

See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (2012).
See, e.g., Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1228 n.8 (9th Cir. 2009); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v.
Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995);
Rodriguez v. Bowen, 876 F.2d 759, 762-63 (9th Cir. 1989).
119
Lemmon v. Astrue, No. CV-11-1808-PHX-GMS, 2012 WL 3778280, at *4 (D. Ariz. 2012) (concluding that
the examining physician’s “detailed examination qualifies as substantial evidence in the record, and the ALJ did
not err by assigning significant weight to his report given ‘his medical specialty and extensive examination.’”);
see also Nelson v. Comm’r of Soc. Sec. Admin., 252 F. Supp. 2d 1148, 1160 (D. Kan. 2003) (concluding that an
ALJ “may reject a treating physician’s opinion outright only on the basis of contradictory medical evidence”).
120
153 Fed. Appx. 846 (3d Cir. 2005).
121
Id. at 846-47.
122
Id. at 847-48.
123
Id. at 847.
124
Id.
118

16

capacity because of her depression and anxiety.125 The ALJ cited the examining report as a
reason not to afford controlling weight to the treating physician.126 The court disagreed,
finding that “[b]ecause [the treating source’s] detailed report was the most recent medical
evidence concerning [the claimant’s] psychiatric status in the record and was not
contradicted, it should not have been discounted by the ALJ.”127 Although the examining
physician’s report may have been sufficient to discredit the treating physician’s initial report,
it evidently was not sufficient to counteract the treating physician’s second report several
months later, which was nearly identical.
One of the cases studied in the recent Senate Permanent Subcommittee on
Investigations Report also highlights the tendency to reconcile conflicting medical evidence
based on which opinion is most recent.128 The patient’s rheumatologist discharged the patient
for not following his directions in treating her back pain.129 He believed that she had
recovered from back surgery sufficiently to the point that she was no longer disabled. 130 A
new rheumatologist, however, just saw her once.131 The claimant asserted that this new
physician’s report was entitled to controlling weight given its status as a treating physician
finding.132 A SSA attorney advisor, who had been delegated the case, apparently determined
that the claimant was disabled without addressing the conflict between the two
rheumatologists’ evidence.133 Again, the most recent physician report prevailed, even though
no change in condition was noted. Placing greater weight on the more recent medical
evidence makes sense, but only when it is based on changed circumstances.
ALJs can also overcome treating physician opinions by finding that the testimony or
behavior of the claimant is not credible. Reviewing courts, however, have been reluctant at
times to accept the credibility determinations made by an ALJ. For example, in the Eighth
Circuit, an ALJ must discuss a claimant’s pain complaints in light of six factors.134 Some
circuits require a showing of malingering or clear and convincing evidence135 (or substantial
evidence)136 to discredit a claimant. Therefore, it has become more difficult for an ALJ to
reject a treating source’s opinion based on a claimant’s pain complaints.
Moreover, in some settings an ALJ should be able to rely on a history of conservative
treatment prescribed to impeach the treating physician’s conclusion of total or permanent

125

Id. at 847-48.
Id. at 848.
127
Id. at 849.
128
See Minority Staff Report 2012, supra note 116, at 69-70.
129
Id. at 70.
130
Id.
131
Id.
132
Id.
133
Id.
134
When there is no objective medical basis to corroborate subjective complaints, the following should be
considered in evaluating the complaints: “the claimant’s prior work record[;] observations by third parties and
treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration,
frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side
effects of medication; 5. functional restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
135
See, e.g., Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
136
See, e.g., Mendez v. Comm’r of Soc. Sec., 300 F. Supp. 2d 317, 320 (D.P.R. 2003); Clark v. Astrue, 844 F.
Supp. 2d 532, 544, 549 (D. Del. 2012).
126

17

disability.137 ALJs logically have questioned why, if the claimant is disabled, the treating
physician did not prescribe a more aggressive treatment regimen. However, an ALJ’s finding
of conservative treatment is not always convincing to the reviewing court. For example, in
Santiago v. Barnhart,138 the court expressly denounced an ALJ’s use of this justification to
reject a treating physician’s conclusions.139 The physician prescribed only limited treatment
for the claimant’s nervous condition, but the reviewing court was not persuaded.140
In Guttilla v. Astrue,141 one reason the ALJ gave for partially rejecting the treating
psychiatrist’s testimony was the mild medication prescribed and the infrequent follow-up
visits scheduled, which appeared to conflict with the treating psychiatrist’s relatively low
Global Assessment of Functioning (“GAF”) Score.142 The court rejected the use of this
justification for two reasons: (1) the GAF evaluation occurred before the alleged onset of the
disability, and (2) the findings in the psychiatrist’s progress notes were “mixed.”143 Thus, the
relevant mental evaluation “contain[ed] facts that support[ed] and contradict[ed the ALJ’s]
decision.”144 Moreover, the court still found the conservative treatment not dispositive as to
the psychiatrist’s credibility, even though the mental status evaluation seemingly supported
the ALJ’s finding, at least in part.145
Thus, the controlling weight formulation has engendered unexpected consequences.
ALJs have struggled to assign the proper weight to each medical opinion offered, and courts
have scrutinized excessively the justifications that ALJs proffer to discredit the treating
physician opinion. Too little of the analysis has centered on the pivotal issue of disability
itself.
Part of the problem may arise from the fact that district courts review only ALJ
decisions that discredit as opposed to credit the treating source opinion. Even if the decisionmaker at the DDS level rejects claims for disability, ALJs grant disability in almost fifty
percent of the cases appealed,146 largely following the recommendation of the treating
physician. Perhaps if the district courts were exposed to those determinations, they would not
be as demanding in the comparatively fewer cases in which ALJs discredit the treating source
opinion. The asymmetrical nature of the SSDI and SSI adjudication system, under which
claimants but not the agency can appeal adverse ALJ decisions, may lead to excessively strict
district court review of the many ALJ decisions that reject treating physician opinions.

137

See, e.g., Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (concluding the ALJ can properly reject the
treating physician’s opinion where the claimant only needs conservative care); see also Castellano v. Sec’y of
Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (affirming the impeachment of a treating
physician’s conclusion that the claimant could not return to work where the physician had not treated for
deterioration of the claimant’s condition but stated on a prior occasion the claimant could complete light or
sedentary work).
138
386 F. Supp. 2d 20 (D.P.R. 2005).
139
Id. at 23.
140
Id.
141
No. 09CV2259 MMA RBB, 2010 WL 5313318 (S.D. Cal. 2010).
142
Id. at *15.
143
Id. at *13.
144
Id.
145
Id. at *15.
146
Data provided by SSA show that fully favorable allowance rates have dropped to 50% (data on file with
ACUS). This rate is down from 60%. See SSAB 2012 Report, supra note 18, at 12 fig. 7.

18

Finally, the treating source rule provides a hook on which the courts can rest a remand
order reached out of sympathy for a claimant who may be sick but not necessarily disabled
under the Act. For example, in McPherson v. Barnhart,147 the ALJ denied the claimant
benefits because a vocational expert testified that she could at least perform sedentary,
unskilled jobs despite her treating physician opining that she was “markedly limited.”148 The
district court described the claimant’s struggles at length, including her father’s death, her
mother’s diabetes and multiple sclerosis, and her eviction from her apartment.149 The court
placed particular emphasis on the claimant’s poor financial state.150 The court held that the
ALJ did not give enough weight to the treating physician’s opinion and reversed the ALJ’s
decision.151 Yet, the ALJ specifically had determined that the treating physician’s opinion
was “inconsistent with [his] treatment notes and a GA[F] of 65,” which indicates a relatively
high-level of function.152
For another example, consider Schaal v. Apfel.153 There, the claimant asserted that
she was disabled as a result of a combination of painful varicose veins and severe allergies
that led to pulmonary problems.154 Physician reports from 1990 and 1991 noted only modest
restrictions, and the SSA medical examiner in 1993 detected no structural impairments and
concluded that the claimant enjoyed the capacity for gainful work.155 The claimant submitted
a form from yet another physician whom she saw starting in 1992, who checked several
boxes on the form indicating, without explanation, that in his view, the claimant should be
considered disabled.156 The ALJ did not defer to that opinion, both because there was no
elaboration of clinical findings and because there was nothing introduced in the record as to
the duration of the claimant’s relationship to this new physician.157 The ALJ cited the
conflicting evidence presented by several other physicians as well.158 The Second Circuit,
however, remanded, finding that the ALJ had insufficiently explained why it was not
affording “controlling weight” to the treating physician’s evidence:“[w]e hold that the
Commissioner’s failure to provide ‘good reasons’ for apparently affording no weight to the
opinion of plaintiff’s treating physician constituted legal error.”159 Given the presence of
other medical evidence to the contrary, the court’s opinion is less than persuasive.

147

356 F. Supp. 2d 953 (S.D. Iowa 2005).
Id. at 958.
149
Id. at 955.
150
Id. at 960-61. (“Plaintiff is a young woman with numerous physical and mental problems all of which are
amplified by poverty which makes it more difficult for her to see her doctors and obtain treatment than if she
were a person of financial means.”).
151
Id. at 961.
152
Id. at 960; see also Nguyen v. Chater, 100 F.3d 1462, 1463 (9th Cir. 1996) (In finding disability based
largely on mental impairment, stressing that the claimant was “shot in both legs by the Communists in 1970
when he was a soldier in the South Vietnamese army.”).
153
134 F.3d 496 (2d Cir. 1998).
154
Id. at 498-99.
155
Id. at 499.
156
Id. at 499-500.
157
Id. at 504.
158
Id. at 499.
159
Id. at 505. After the ALJ determination, the claimant furnished additional information to the Appeals
Council showing that she had seen the treating physician a number of times and that his opinion had some basis
in clinical findings. Id. at 500. Perhaps the court would have been on sounder footing to remand for insufficient
consideration of the new evidence rather than for the ALJ’s insufficient deference to the treating physician.
148

19

Similarly, in Wiltz v. Barnhart,160 the ALJ determined that the claimant exaggerated
the side effects of his migraines because, among other reasons, the claimant testified to doing
schoolwork, homework, shopping, driving occasionally, playing video games, playing on the
basketball and football teams at school, and performing some household chores.161 However,
the reviewing court found this credibility finding (and therefore rejection of the treating
source opinion) inadequate because the ALJ independently asserted that the treating
physician report was insufficiently supported by objective evidence, a result with which the
court disagreed.162 The adverse credibility finding was apparently reversed, therefore,
because the court did not agree with an independent justification offered by the ALJ to
discredit the treating source opinion. Sympathy for the claimant may have factored into the
result.163
C. Application of the Ninth Circuit’s Credit-As-True Rule
The challenge posed by the treating physician rule is far greater in the circuits that
embrace the “credit-as-true” rule. In the Ninth Circuit, for instance, courts combine the
treating physician rule with the circuit’s credit-as-true rule to remand for a court-ordered
award of benefits when the ALJ’s effort to discredit the treating source is deemed
insufficient.164 Ninth Circuit courts credit treating source testimony and remand for an award
of benefits where:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such
testimony, (2) there are no outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is clear from the record that
the ALJ would be required to find the claimant disabled were the testimony
credited.165
In effect, the credit-as-true rule deprives an ALJ of a second opportunity to reweigh
testimonial evidence or correct any errors in his or her initial opinion with respect to the
treating source rule. As a result, claimants who are not disabled may receive benefits.
The Ninth Circuit borrowed the credit-as-true rule from the Eleventh Circuit’s
practice of crediting a claimant’s subjective pain testimony as true if the ALJ articulated
insufficient reasons for rejecting it.166 In Varney v. Secretary of Health & Human Services,167
160

484 F. Supp. 2d 524 (W.D. La. 2006).
Id. at 533-34.
162
Id. at 534-35.
163
Id. at 533.
164
Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Because the ALJ failed to provide legally sufficient
reasons for rejecting [the claimant’s] . . . treating physicians’ opinions, we credit the evidence as true.”).
165
Smolen v. Chater, 80 F.3d 1273,1292 (9th Cir. 1996); see also Brewes v. Comm’r of Soc. Sec. Admin., 682
F.3d 1157, 1164-65 (9th Cir. 2012) (concluding that further proceedings were not necessary and remanding for
an award of benefits where “[t]he complete record show[ed] that [the claimant was] likely to miss multiple days
of work per month [and] [t]he vocational expert testified that a person with [the claimant’s] characteristics who
would miss that much work was not employable”).
166
The rule in the Eleventh Circuit does not involve treating physician testimony, but only credits claimants’
subjective pain testimony where “the Secretary fails to articulate reasons for refusing to credit a claimant’s
subjective pain testimony.” Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987); see also MacGregor v.
Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986) (“If the secretary refuses to credit [a claimant’s subjective pain]
testimony he must do so explicitly and give reasons for that decision. . . . Where he fails to do so we hold as a
matter of law that he has accepted the testimony as true.”).
161

20

the Ninth Circuit addressed the rights of claimants, some of whom “experienc[ed]
unwarranted difficulties in the application process.”168 Five years had passed since Varney
first applied for benefits and the court noted that “her situation is not atypical.”169 The court
also expressed concern over ALJs’ alleged tendencies to “reach a conclusion first, and then
attempt to justify it by ignoring competent evidence in the record that suggests an opposite
result.”170
The Ninth Circuit extended the credit-as-true rule to treating physician testimony. A
reviewing court may credit the treating source’s opinion and remand for a calculation of
benefits if the ALJ has not sufficiently explained why the treating source opinion does not
merit controlling weight.171
For example, in Folio v. Astrue,172 the district court reversed and remanded for an
award of benefits because the treating physician’s opinion stated that [the claimant] was
“permanent[ly] disab[led].”173 However, the same source opinion asserted that the claimant’s
“‘medical problems are stable’; that [the claimant] is ‘fully aware of medication side effects’;
and that ‘[h]is prognosis is fair to good, depending largely on how he controls his
[d]iabetes.’”174
Alongside the treating physician’s ambiguous opinion, the record contained two
examining, non-treating opinions that were inconsistent with a conclusion of “permanent
disability,” and so the ALJ relied on those opinions to contravene the treating source
opinion.175 The ALJ also determined that the claimant had exaggerated his symptoms both in
the hearing and to the treating physician.176 Upon finding that the ALJ did not adequately
articulate a rejection of the claimant’s treating physician’s opinion, inter alia, the district
court ordered an award of benefits relying on the treating source’s conclusion that the
claimant was permanently disabled.177 The court order awarding benefits deprived the ALJ
of an opportunity to provide additional articulation of the reasons that the judge denied
“controlling weight” to the treating physician’s opinion.
In Young v. Commissioner of Social Security,178 the Commissioner conceded that the
ALJ improperly discredited a treating source, but sought remand for further proceedings to
permit the ALJ to make additional findings with respect to the disabling effects of the

167

859 F.2d 1396 (9th Cir. 1988).
Id. at 1398.
169
Id. at 1399 (“Applicants for disability benefits generally suffer from crippling conditions that preclude them
from earning a living wage; they often have no other source of income and can experience tremendous financial
difficulties while awaiting the outcome of their appeals and proceedings on remand.”) (citing Lopez v. Heckler,
713 F.2d 1432, 1437 (9th Cir.1983)).
170
Id. (citing Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)).
171
See, e.g., Benecke, 379 F.3d at 594-95 (concluding that the vocational expert’s testimony established no need
to remand for further proceedings where the vocational expert concluded that the claimant could not work if her
treating physician’s testimony were credited).
172
No. CV06-2700-PHX-EHC, 2008 WL 3982972 (D. Ariz. 2008).
173
Id. at *4.
174
Id.
175
Id. at *6.
176
Id. at *4.
177
Id. at *8.
178
No. CV09-744-KI, 2010 WL 3607766 (D. Ore. 2010).
168

21

claimant’s mental condition.179 The claimant’s physician opined that the claimant had
“‘marked’ [limitation] in maintaining concentration, persistence and pace.”180 If the medical
evidence were credited as true, it would have pointed to an emotional disorder.181 However,
establishing an emotional disorder or a dysthymic disorder generally is not “per se
disabling.”182 Instead of remanding for a determination of the disabling effects of the
claimant’s impairment, however, the court remanded for a calculation of benefits.183
Application of the credit-as-true rule, where evidence might support either outcome,
effectively supplants the judgment of the ALJ for that of the reviewing court.184
The Ninth Circuit has not clarified whether the credit-as-true rule is mandatory, but
even if discretion remains, the rule may bestow a windfall upon some claimants. ALJs can
only circumvent the consequences of a court-ordered award of benefits in the Ninth Circuit
by satisfying the court initially that they are correctly withholding “controlling weight” from
the treating physician’s testimony. This task is far from simple. As discussed, the improper
rejection of treating source opinions remains the most frequently cited basis for remands of
ALJ decisions.185
The credit-as-true rule also makes it easier for reviewing courts to grant claimantfriendly orders for reasons irrelevant to the determination of disability. One judge opened her
opinion by noting that “[t]his matter is now nearly fifteen years old and has a record that is
nearly 1,000 pages.”186 The opinion continued by elaborating upon the long procedural
history of the case before beginning any analysis of the issues. The court ultimately found
that the ALJ erred by discrediting three treating source opinions without clear and,
convincing reasons.187 Given the Ninth Circuit’s credit-as-true precedent, the judge
terminated the proceedings and ordered an immediate payment of benefits.188 An
understandable frustration with delay may sway judges to award immediate benefits rather
than remanding for further fact-finding. At the end of a separate opinion, a judge concluded,
“[i]n light of the extensive delay in Plaintiff’s application for benefits, the Court invokes its
discretion and remands this case for the payment of benefits. . . . Further delays at this point
would be unduly burdensome on Plaintiff.”189 The focus was not on disability per se. The
credit-as-true rule exacerbates rather than clarifies the problems faced by ALJs in overcoming
the controlling weight formulation.

179

Id. at *1, *3.
Id. at *1.
181
Id. at *3.
182
See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
183
Young, supra note 178, at *4.
184
See Matney v. Sullivan, 981 F. 2d 1016, 1019 (9th Cir. 1992) (“The trier of fact and not the reviewing court
must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”) (citing Richardson v. Perales, 402 U.S. at 400; Allen v. Heckler,
749 F.2d 577, 579 (9th Cir. 1984)).
185
See App. B, at A-1.
186
Feskens v. Astrue, 804 F. Supp. 2d 1105, 1111 (D. Ore. 2011).
187
Id. at 1115-22.
188
Id. at 1123.
189
D’Angel’o v. Astrue, No. CV06-03055-PHX-EHC, 2007 WL 4617186 at *9 (D. Ariz. 2007).
180

22

D. Inversion and Subversion of Substantial Evidence Review
The preceding analysis suggests that court application of SSA’s controlling weight
formulation has distorted substantial evidence in the record review.190 Substantial evidence
on the record as a whole under the Administrative Procedure Act (“APA”) is meant to be a
highly deferential standard.191 Reviewing courts too often focus on the weight to be ascribed
various physicians’ opinions and the amount of evidence needed to discredit the treating
physician as opposed to assessing whether, based on all of the medical evidence and
testimony, substantial evidence in the record supports the agency’s determination.192 Instead
of engaging in judicial review within specifically defined parameters, courts have exercised
broad judicial discretion.193
To be sure, if the agency’s decision is unclear, or if the decision misstates law or SSA
policy, then remand is appropriate. And the courts, Appeals Council, and SSA General
Counsel’s Office agree that there are ALJ decisions that fall short in explaining why
particular medical evidence is more probative than other evidence. Indeed, the Appeals
Council has documented that with a five percent cited reason for remand frequency rate,
ALJs do not even express why they have discredited the treating physician’s opinion.194 But,
many remands flow from district court disagreement over the weight afforded one or more
physician opinions even when many other opinions exist in the record. Other remands stem
from judicial reluctance to deem ALJ credibility determinations sufficient to overcome the
strong presumption for the treating physician’s opinion.
Seeds for the inversion in review can be found in SSA’s 1991 regulation itself. The
regulation provides that as long as the treating source’s opinion “is not inconsistent with the
other substantial evidence in [the claimant’s] case record, [SSA] will give it controlling
weight.”195 The regulation, in other words, shifts the focus from whether there is substantial
evidence in the record as to disability—a familiar APA inquiry—to whether there is
substantial evidence to overcome the treating physician’s opinion. When the question is
relatively close, there may be substantial evidence in the record as a whole to support an
agency decision pointing in either direction, but an ALJ may be hard pressed to convince a
reviewing court that substantial evidence exists to discredit the treating physician opinion. In
essence, a reviewing court today typically does not ask whether there is substantial evidence
to justify a finding as to disability—a highly deferential standard196—but rather whether the
190

See RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 1015 (Wolters Kluwer 2010) (“Circuit courts
sometimes adopt modifications to the APA substantial evidence standard, though the legitimacy of such judicial
modifications is doubtful.”).
191
See 42 U.S.C. §§ 405(g), 1383(c)(3) (2012); 5 U.S.C. § 706(2)(E) (2012); Paul R. Verkuil, An Outcomes
Analysis of Scope of Review Standards, 44 WM. & MARY L. REV. 679 (2002).
192
SSA’s explanations accompanying the regulations acknowledge the tension that exists when making
disability determinations: the desire to objectively identify disability coupled with “subjectivity and
individualization” that accompanies the decision-making process. Schneider, supra note 48, at 402 (citing 1991
Final Rules at 36,934-35, which discuss the uniqueness of each case and the inability to define the weight to be
given to every piece of evidence in every case).
193
Id. at 399-400 (“[C]ourts introduce flexibility into the substantial evidence standard by using the treating
physician rule to define the relevant evidence that a reasonable mind would accept as sufficient.”).
194
See App. B at A-9 tbl. 10.
195
20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2) (2012); see also 42 U.S.C. §§ 405(g), 1383(c)(3) (2012)
(describing judicial review of agency action according to the substantial evidence review standard).
196
In Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), the Supreme Court explained that the
substantial evidence standard requires reviewing courts to consider the entire record and “take into account

23

ALJ properly found that substantial evidence exists to justify rejection of the treating
physician opinion—a much less deferential stance. Although the term “substantial evidence”
is used in both contexts, the substantial evidence needed to override a treating physician’s
opinion is more demanding. Instead of deferring to the ALJ’s determination unless clearly
wrong, the regulation asks the reviewing court to ensure that the ALJ has met his or her
burden of finding that the great weight of the evidence in the record justifies discrediting the
treating source’s opinion.
The deference implied by the substantial evidence test is often overlooked by courts
for two reasons: first, it is difficult for courts to accept that a person may be denied disability
benefits so long as a job theoretically exists in the national economy, even if practically, the
person would not be able to engage in that work (e.g., the individual would have to move
across the country).197 Second, courts have a long tradition of substituting their own
judgment for that of SSA in the treating physician context, based both on pre-1991 regulation
case law and enduring application of that case law.198
In short, the controlling weight formulation turns the familiar agency/court
relationship on its head: the agency must demonstrate to the court’s satisfaction that its
disavowal of the treating physician rule was appropriate as opposed to the court deferentially
reviewing the entire record to ensure that the agency’s determination can be supported. This
distortion of the substantial evidence review standard “effectively . . . override[s] the
congressionally chosen scope of review standard.”199
III. EROSION OF BASES FOR THE TREATING PHYSICIAN RULE
Health care (and the practice of medicine) in the United States has undergone
dramatic changes over the course of the last several decades. Factors underlying this
transformation include: restructuring of financial and organizational models for health care
delivery; greater specialization of medical professionals (and concomitant shortage of
primary care physicians); and rising incidence of chronic diseases and disability. As a result,
the paradigmatic long-term doctor-patient relationship is largely extinct. Individuals now
typically visit multiple medical professionals (e.g., primary physicians, specialists, NPs, PAs,
LCSWs) in a variety of settings (e.g., private group or solo practices, managed care clinics,
hospitals, ambulatory care centers, specialty clinics, public health care centers, community
mental health clinics) for their health care needs, and less frequently develop a sustained
relationship with one physician. Erosion of some of the distinctions between treating
physicians and other physicians (such as examining physicians) suggests there is currently
whatever in the record fairly detracts from its weight.” The Court continued that the standard was not “intended
to negative the function of the [agency] presumably equipped or informed by experience to deal with a
specialized field of knowledge, whose findings within that field carry the authority of an expertness which
courts do not possess and therefore must respect.” Id. In the SSA context, the Supreme Court has explained
that substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401.
197
Verkuil, supra note 191, at 707.
198
See supra Part I.B.2 and Part II (discussion and analysis of the treating physician rule as applied by federal
court case law both before and after the 1991 regulations).
199
Verkuil, supra note 191, at 709. SSA data reveal that disparity relating to the treating physician rule exists
among the circuits. See App. B at A-11 tbl. 12. As demonstrated by the varying frequency with which the
treating physician rule is cited as a reason for remand, federal courts are not free from confusion about the
treating physician rule.

24

less reason to presumptively deem treating source opinions to be of “special intrinsic value.”
Moreover, difficulty in determining who among a wide range of medical professionals should
be considered a treating source has bedeviled ALJs and reviewing courts, resulting in high
remand rates and perhaps even allowance of claims by individuals who were not disabled.
These factors, addressed in more detail below, raise fundamental questions about the
continuing efficacy of the treating physician rule.
A. The Changing Nature of the United States’ Health Care System
As SSA noted in 1991 when promulgating the treating physician rule, the presumptive
weight afforded the opinions of these medical professionals is based on the following central
premise: that treating physicians generally have longitudinal knowledge and unique
perspectives concerning their patients’ physical or mental impairments that cannot be gleaned
from medical records or test results alone.200 In this special valuation of continuity in the
physician-patient relationship, SSA is not alone. Embedded in both American medicine and
culture is the notion that longevity enhances the relationship between doctor and patient and
leads to better medical outcomes. Medical studies are replete with references to continuity of
care as a central tenet of medical practice, particularly in primary care. 201 An idealized vision
of enduring doctor-patient relationships is a fixture in American society, as well.202 For
example, early television series in the 1960s, such as Ben Casey, Dr. Kildare, and Marcus
Welby, M.D., featured story lines of doctors who had long-term relationships with their
patients and treated each with a personal touch—portrayals which “helped turn the American
doctor into a cultural hero vying in popularity with the ubiquitous cowboy.” 203 As of the
1980s, physician autonomy in practice management and patients’ ability to choose—and stay
with—their choice of clinician remained the dominant health care model.204
Over the last several decades, however, health care systems in the United States have
undergone tremendous changes, primarily—though not exclusively—due to the rise of

200

20 C.F.R. §§ 404.1527(c)(2), 416.927(c) (2012); see also discussion supra Part I.B.3.
E.g., Matthew Ridd et al., The Patient-Doctor Relationship: A Synthesis of the Qualitative Literature on
Patients’ Perspectives, 59 BRIT. J. OF GEN. PRAC. e116, e119-21 (April 2009); John W. Saultz, Defining and
Measuring Interpersonal Continuity of Care, 1 ANNALS OF FAM. MED. 134, 134-35 (Sept./Oct. 2003)
[hereinafter Saultz, Defining and Measuring Continuity]; Susan A. Flocke et al., The Impact of Insurance Type
and Forced Discontinuity on the Delivery of Primary Care, 45 J. FAM. PRAC. 129 (Aug. 1997) [hereinafter
Flocke, Impact of Insurance Type]; Institute of Medicine, National Academy of Science, PRIMARY CARE:
AMERICAN’S HEALTH IN A NEW ERA 31-32, 43-44, 56-57 (1996) (defining “primary care” by, among other
essential attributes, continuity of care over time by a single individual or team of health professionals)
[hereinafter PRIMARY CARE].
202
Sharyn J. Potter & John B. McKinlay, From a Relationship to Encounter: An Examination of Longitudinal
and Lateral Dimensions in the Doctor-Patient Relationship, 61 SOC. SCI. & MED. 465, 466 (2005).
203
Id. (internal quotation omitted).
204
As of 1988, nearly 75% of employees were enrolled in traditional indemnity (fee-for-service) plans. See
App. G at A-32. Government health insurance programs (i.e., Medicare and Medicaid) also featured fee-forservice plans from their inception in 1965 until adoption of the prospective payment system in 1982. Laura D.
Hermer, Private Health Insurance in the United States: A Proposal for a More Functional System, 6 HOUS. J.
HEALTH L. & POL’Y 1, 13-14 (2005). Under fee-for-service plans, “physicians operated autonomously, making
patient care decisions based solely on what they deemed to be in the patient’s best interest.” Julia A. Martin &
Lisa K. Bjerknes, The Legal and Ethical Implications of Gag Clauses in Physician Contracts, 22 AM. J. L. AND
MED. 433, 440 (1996); see also, Peter D. Jacobson, Who Killed Managed Care? A Policy Whodunit, 47 ST.
LOUIS U. L.J. 365, 368 (2003) (“In the fee-for-service model, there was very little interference on physician
autonomy from payers, hospital administrators, or patients.”).
201

25

managed care.205 Foremost among these changes has been the considerable financial and
organizational restructuring of the health care delivery system. Health care has evolved from
a largely unorganized collection of interactions between individual doctors and patients, to a
highly interconnected system involving many corporate entities.206
In the 1990s, spiraling health care costs under traditional indemnity (fee-for-service)
plans led to the rise of managed care organizations (“MCOs”).207 Managed care, in its
broadest sense, represents “a system that closely monitors the medical care provided by
health care providers and the treatment patients receive in an effort to control health care
spending.”208 MCOs employ a variety of restrictions (or cost-control incentives) to influence
physicians’ practice behavior and to promote patient-enrollees’ efficient use of health care
services.209 Under some MCOs, such as health maintenance organizations, subscribers must
205

Rhodes Adler et al., The Relationship Between Continuity and Patient Satisfaction: A Systematic Review, 27
FAM. PRAC. 171, 177 (2010) (“Changes in health care over the past 25 years have been perceived as leading to
decreased continuity, and have actually decreased continuity for patients.”); Potter, supra note 202, at 466-70
(describing longitudinal changes to doctor-patient relationship in latter decades of 20th century as corporatist
model of health care took hold, due largely to “exponential growth of managed health care in the 1980s and
1990s [that] drastically changed the roles of both physicians and patients”); Saultz, Defining and Measuring
Continuity, supra note 201, at 134 (observing that “[c]hanges in American health care during the past 2 decades
have undermined the ability of patients to choose and remain with an individual physician”); see also Eva
Kahana et al., Forced Disruption in Continuity of Primary Care: The Patients’ Perspective, 30 SOCIOLOGICAL
FOCUS 177, 183 (1997) (“The role of ‘medico-administrative forces’ in disrupting continuity of patient care and
adverse effects of social disruption have been widely lamented by clinicians . . . . [and] the vast majority of
patients report dismay, dissatisfaction and anger as they attempt to cope with administratively mandated
disruption of their customary medical care.”).
206
E.g., John W. Saultz & Waleed Albedaiwi, Interpersonal Continuity of Care and Patient Satisfaction: A
Critical Review, 2 ANNALS OF FAM. MED. 445, 445 (Sept./Oct. 2004) (“Changes in the American healthcare
system during the past decade have made it increasingly difficult to establish such long-term trusting
relationships between physicians and patients. Some authors have questioned whether a personal model of care
is feasible, as health plans increasingly have required provider changes for economic reasons.”); Borkan, supra
note 7 (“What was traditionally (and perhaps mythically) considered a dyadic relationship between clinician and
the health care consumer has been potentially jeopardized by a new triangular interaction: the patient-providermanaged care/health insurance bureaucracy.”).
207
Hermer, supra note 204, at 14-15, 22-23; Potter, supra note 202, at 468-69; see also Russell Korobkin, The
Failed Jurisprudence of Managed Care, and How to Fix It: Reinterpreting ERISA Preemption, 51 UCLA L.
REV. 457, 462 (2003) (“[E]mployers began to look for healthcare options that could rein in expenses.”). Under
the traditional fee-for-service model, an individual can visit a health care provider of their choosing, with the
insurer reimbursing most of the cost (typically, 80%). See Hermer, supra note 204, at 21-22. Fee-for-service
models thus separate delivery of health care from payment, and have few cost control measures. MCOs, by
comparison, integrate care delivery and reimbursement through a variety of contractual, organizational, and
administrative arrangements in order to control costs and health care utilization. Id.
208
Potter, supra note 202, at 468; see also Susan A. Flocke, Does Managed Care Restrictiveness Affect the
Perceived Quality of Primary Care? A Report from ASPN, 48 J. FAM. PRAC. 762 (Oct. 1999) [hereinafter
Flocke, Managed Care Restrictiveness]; Hermer, supra note 204, at 22; Korobkin, supra note 207, at 462
(managed care constitutes “an institutional arrangement in which one company provides an insurance function
or arranged with subcontractors for the provision of healthcare services”); PRIMARY CARE, supra note 201, at
105 (defining managed care as “health plans that have a selective list of providers, both professionals and
hospitals, and that include mechanisms for influencing the nature, quantity, and site of services delivered”).
Common managed care plans or arrangements include: health maintenance organizations (“HMOs”), Point of
Service (“POS”) plans, preferred provider organizations (“PPOs”), and independent practice associations
(“IPAs”). Hermer, supra note 204, at 22-26. For cogent descriptions of the various types of managed care, see
id. and Kaiser Family Foundation, How Private Health Coverage Works: A Primer (2008 Update) 2-5 (2008),
available at http://www.kff.org/insurance/upload/7766.pdf.
209
Hermer, supra note 204, at 23-25; Flocke, Managed Care Restrictiveness, supra note 208. Typical managed
care restrictions/incentives relating to physicians include capitation arrangements, utilization reviews,

26

choose a primary care physician who acts as a “gatekeeper” for other medical services, such
as referral to an approved in-network specialist or laboratory tests.210 Other MCOs, such as
preferred provider organizations (“PPOs”), are networks of health care providers who agree
to discount their fee-for-service rates in exchange for incentives offered by the insurer to
patients to use in-network providers.211 PPO plans thus encourage use of preferred, innetwork providers by offering subscribers discounted rates, so long as they see providers
within the network; on the other hand, financial “penalties” are typically imposed on
subscribers—in the form of higher copayments or other out-of-pocket costs—for visiting outof-network providers.212
Managed care now dominates the United States’ health care marketplace. Today, 210
million Americans are enrolled in some form of managed care plan.213 Traditional fee-forservice plans are largely non-existent: while 73% of individuals covered by employersponsored health plans were enrolled in fee-for-service plans in 1988, enrollment in such
plans had dwindled to less than 1% as of 2012.214 By contrast, as of 2012, 99% of enrollees
in employer-sponsored private insurance subscribed to some form of managed care plan.215
The increased corporatization of health care spurred by managed care has also led to
wholesale (and ongoing) changes in business relationships between physicians, other health
care providers (such as hospitals), MCOs, and employers.216 Indeed, the last several decades
have been described as the “era of Brownian motion in health care” in which “mergers,
acquisitions and affiliations have been commonplace within the health plan, hospital, and
physician practice sectors.”217 These shifting business alliances often cause discontinuities in
professional relationships (for providers) or treating relationships (for health care
consumers).218
The rise of managed care, in its many forms, has had profound effects on the doctorpatient relationship. Most notably, the long-term doctor-patient relationship—which then
Commissioner Michael Astrue has called the “Marcus Welby” model219—has been rendered
prescription formulary, and clinician-withhold or incentive-bonus funds. Id. With respect to insured enrollees,
managed care plans often use some combination of preauthorization for diagnostic or treatment procedures,
referral requirements, specialty networks, or carve-outs/annual limits for particular treatments or conditions. Id.
210
Hermer, supra note 204, at 24; Martin, supra note 204, at 437; see also Sandra J. Carnahan, Law, Medicine,
and Wealth: Does Concierge Medicine Promote Health Care Choice, Or Is It a Barrier to Access?, 17 STAN. L.
& POL’Y REV. 121, 124 n. 12 (2006) (the primary care physician “acts as the ‘gatekeeper’ for access to hospital
and specialty services”).
211
Hermer, supra note 204, at 25.
212
Id.
213
See Current National Managed Care Enrollment, MCOL.COM, http://www.mcol.com/current_enrollment
(last visited Jan. 25, 2013).
214
See App. G at A-32 (citing Kaiser Family Foundation/Health Research & Educational Trust, 2012 Employer
Benefits Health Survey 67 ex. 5.1 (2012), available at http://ehbs.kff.org/pdf/2012/8345.pdf).
215
Id.
216
Flocke, Managed Care Restrictiveness, supra note 208, at; Institute of Medicine, National Academy of
Science, CROSSING THE QUALITY CHASM: A NEW HEALTH SYSTEM FOR THE 21ST CENTURY 3-4 (2001)
[hereinafter CROSSING THE CHASM]; Saultz & Albedaiwi, Interpersonal Continuity, supra note 206, at 245
(observing that, not only has managed care come to dominate the health care delivery market, but “health plans
increasingly have required provider changes for economic reasons”).
217
CROSSING THE CHASM, supra note 216, at 3.
218
E.g., Borkan, supra note 206.
219
As then Commissioner Astrue noted in his congressional testimony in June 2012: “I think that the treating
physician rule historically . . . relied on [a] different paradigm. . . . [T]here was a time when we all had a Marcus

27

virtually obsolete. A robust body of scholarly medical literature has documented the
deleterious effect of managed care on the continuity of care.220 Notably, in several studies,
about fifty percent of managed care subscribers reported they had changed their usual
physicians over the studied period (typically, several years), with even higher rates of
discontinuity of care for elderly, minority, or other disadvantaged patients.221 Forced
disruption of doctor-patient relationships is frequently due to shifting business alliances—
such as annual re-bidding of insurance contracts or provider networks—which result in a
subscriber’s formerly in-network primary care physician or specialist getting dropped from
the plan’s preferred network, or an employer dropping an insurance plan entirely.222
Researchers have also found higher rates of voluntary physician-switching by managed care
patients.223 Simply put, under MCOs, relationships between doctors and patients tend to be
relatively short term whether due to administrative changes in insurance or network coverage
(forced disruption) or patient choice (voluntary switching physicians).

Welby as a personal physician and that’s not true anymore.” Astrue June 2012 Testimony, supra note 13.
Marcus Welby, M.D. was an American medical television program in the 1970s that featured two general
practitioners, Dr. Welby and his young assistant, who provided individualized care to patients. See Marcus
Welby, M.D., IMDB.COM, http://www.imdb.com/title/tt0063927/?ref_=sr_1 (last visited Jan. 25, 2013)
220
Paul Nutting et al., Continuity of Primary Care: To Whom Does it Matter and When?, 1 ANNALS OF FAM.
MED. 149, 154 (Nov. 2003) (“The current organizational and financial restructuring of the health care system
creates strong pressures against continuity with employers changing plans, and plans changing providers.
Forced disruption in continuity of care is common, particularly for those with a managed care type of
insurance.”); Borkan, supra note 206 (based on case studies of five Midwestern family practice groups, the
authors found that managed care disrupted long-term relationships between medical providers and patients, and
noted: “[T]hough some exceptional patients chos[e] to stick with their providers under any circumstances, both
parties seem[ed] to be aware that those bonds m[ight] be severed at any time.”); Kahana, supra note 205, at 18384 (observing that “vast majority of patients report dismay, dissatisfaction, and anger” when coping with
managed care-related forced disruption of medical care, and that “patients with recent or acute health problems
are at particularly high risk in instances of formal care discontinuity”); Flocke, Impact of Insurance Type, supra
note 201 (patients with IPA/PPO type of managed care were four times more likely to report forced change of
doctors compared to patients with fee-for-service plans); Karen Davis et al., Choice Matters: Enrollees’ Views
of Their Health Plans, 14 HEALTH AFF. 99, 103, 111 (May 1995) (advent of restricted-network managed care
plans introduced inherent instability to employment-linked health care coverage, and “this instability may
undermine continuity of patient care”).
221
See Nutting, supra note 220, at 154 (summarizing studies showing that only about 50% of surveyed patients
reported continuity of regular physician, and rates were lower for elderly or minority patients and those without
medical insurance); Davis et al., supra note 220, at 103-04 (1995) (finding, based on random telephone survey
of working class families with employment-based health insurance, that almost half of the respondents had
changed plans in the past three years, with one in three reporting that change was involuntary); see also George
E. Kikano et al., ‘My Insurance Changed’: The Negative Effects of Forced Discontinuity of Care, 7 FAM. PRAC.
MGMT. 44 (Nov./Dec. 2000) (in study of 1,800 primary care patients in Midwest, 24% had been forced to
change family doctors in previous three years due to insurance change); L.J. Cornelius, The Degree of Usual
Provider Continuity for African and Latino Americans, 8 J. HEALTH CARE FOR POOR AND UNDERSERVED 170
(1997).
222
Nutting, supra note 220, at 154 (describing forced disruptions in care from MCOs as “common”); see also
Borkan, supra note 206 (chronic shifting in contracts and relationships among employers, managed care
organizations, medical groups, health plans, hospitals and providers due to managed care has disrupted longterm relationships between medical providers and patients, and surveyed providers felt that such disruptions
cause “splintering” of continuity of care and an “endless” number of new patients); Flocke, Impact of Insurance
Type, supra note 201 (25% of surveyed medical practices had experienced a recent professional merger, and
33% had undergone a recent buyout).
223
Dana Gelb Safran et al., Switching Doctors: Predictors of Voluntary Disenrollment from a Primary
Physician’s Practice, 50 J. FAM. MED., *2-3 (Dec. 2000) (about 25% of studied patients enrolled in MCOs
voluntarily changed physicians during the three-year study period (1996 – 1999), with perceived quality of the
physician-patient relationship as the leading determinant in patient loyalty or disenrollment).

28

The doctor-patient relationship has also undergone significant qualitative changes
over the last several decades—some attributable to managed care, some not. Under the new
managed care paradigm, both physicians and patients frequently feel time-pressured. 224
Physicians state that they do not have sufficient time to diagnose their patients, while patients
say that they do not have sufficient time to communicate their thoughts to their physicians.225
Financial considerations also drive increased patient loads for many physicians, particularly
primary care doctors. “Family physicians average twenty to thirty patient visits per day, with
a weekly average of 127.7 patient contacts in various settings, including office, hospital, and
nursing home visits, and supervision of home health, nursing home, and hospice patients.”226
Managed care has also been linked to decreased duration of patient visits to medical
specialists.227 Indeed, the time and other pressures that now encroach on the doctor-patient
relationship have prompted one scholar to observe: “What happens between a doctor and
patient might more aptly be termed an ‘encounter’ rather than a relationship . . . [it] is
becoming increasingly similar to the ‘fleeting relationship’ between a cab driver and his
fare.”228
224

See Susan Door Goold & Mack Lipkin, The Doctor-Patient Relationship Challenges, Opportunities, and
Strategies, 14 JGIM (Supp. 1) S24, S29 (Jan. 1999) (examining effects of managed care on visit time);
Carnahan, supra note 210, at 129-30 (citing research from Center for Studying Health System Change that, as of
2001, “34% of physicians reported that they ha[d] inadequate time to spend with their patients, [which was] up
from 28% in 1997”); see also David C. Dugdale, Ronald Epstein & Steven Z. Pantilat, Time and the PatientPhysician Relationship, 45 J. GEN. INTERN. MED. (Supp. 1) S34, S34 (Jan. 1999) (citing results from 1995
survey by Commonwealth Fund that “physicians with at least half of their patients in managed care were nearly
twice as likely to be dissatisfied with the amount of time spent with patients (38% vs. 18%)”).
225
E.g., Richard J. Baron, New Pathways for Primary Care: An Update on Primary Care Programs From the
Innovation Center at CMS, 10 ANNALS OF FAM. MED. 152, 152 (Mar./Apr. 2012) (“[M]any [physicians] feel
frustrated by constraints of time . . . as they struggle to incorporate burgeoning responsibilities.”); Kevin
Grumbach et al., Primary Care Physicians’ Experience of Financial Incentives in Managed-Care Systems, 339
NEW ENG. J. MED. 1516, 1519 (1998) (analysis of survey data from California-based primary care physicians
with at least one managed care contract found that 75% felt pressure to see more patients per day, and nearly
one-third of these doctors believed such pressure compromised patient care); see also Cynthia A. Smith, A
Legislative Solution to the Problem of Concierge Care, 30 SETON HALL LEGIS. J. 145, 146 (2005); Julia Murphy
et al., The Quality of the Physician-Patient Relationship, 50 J. FAM. PRAC.123, 126-27 (Feb. 2001)
(observational study of patients under continuing care of primary physician from 1996 to 1999 found significant
declines in indicators of relationship quality relating to interpersonal treatment, quality of communication, and
trust).
226
See Carnahan, supra note 210, at 128; Smith, supra note 225, at 147 (primary care providers reported
needing to see at least 30 patients per day).
227
Gery P. Guy, Jr. et al., Visit Duration for Outpatient Physician Office Visits Among Patients With Cancer, 8
J. ONCOLOGY PRAC. 2s, 4s (Supp. May 2012) (study of mean duration of ambulatory visits for cancer patients
showed that “physician reimbursement mechanisms affected visit duration . . . higher rates of performancebased compensation and capitation were associated with shorter visit times”).
228
Potter, supra note 202, at 465, 476. Other researchers have characterized U.S. health care in the 21 st century
in similar fashion. For example, one author likened health care delivery to a production line:
Physicians have become a constantly hurried and harried group of “pieceworkers.” Because
[they] are paid per visit or procedure, the only way to maintain income in the face of rising
costs is to increase the volume of services provided. Patients have become [their] means of
production. Because each “piece” of work has become devalued, physicians must perform
higher volumes to meet their budgets. For example, if a primary care physician does not make
twenty-four to thirty billable visits per day, he [or she] may not be able to meet his [or her]
overhead expenses. The non-reimbursed aspects of care, such as case management and
communication, fall by the wayside. . . . Because medicine has become commodified, there is
less emphasis on doctor-patient relationships.

29

To be sure, other forces over the course of the last twenty years have also effected
qualitative changes in the doctor-patient relationship. One factor—of particular salience
here—is an epidemiological shift in the medical needs of the American public from
predominantly acute care, to episodic care for chronic conditions.229 Chronic conditions are
now the leading cause of illness, disability, and death in this country; they affect about half of
the U.S. population and account for the majority of health care expenditures. 230 Moreover,
nearly half (44%) of persons with chronic illnesses have more than one such condition.231
Medical care for chronic, comorbid conditions is often complex and calls for a collaborative,
multidisciplinary approach among a variety of medical disciplines.232 Patients with chronic
illnesses thus tend to have multidisciplinary treatment teams of medical professionals, rather
than a singular treating physician.
Additionally, over the last two decades, the trend toward specialization in American
medical education—and concomitant shortage in primary care physicians—has accelerated
significantly. Since 1998, medical school graduates entering specialty (or subspecialty) fields
have far outpaced those selecting primary care.233 Indeed, during this period, the number of
graduates from U.S. medical schools entering primary care dropped by fifty percent.234 The
net result is a shortage of primary care physicians. Studies published in the last ten years
document a shortage of primary care physicians.235 The American College of Physicians, for
example, has warned: “The primary care system, the backbone of the nation’s health system,
is at grave risk of collapse.”236 Gaps in the primary care workforce are expected to widen
further when, as a result of health care reform, an estimated thirty million or more newly
insured individuals will enter the health care system.237

Rebecca D. Elon, The Ethics of Health Care Reform: Unintended Consequences of Payment Schemes and
Regulatory Mandates, 12 J. HEALTH CARE L. & POL’Y 63, 66 (2009); see also Goold & Lipkin, supra note 224,
at S29 (analogizing time constraints on visits to patients “being on a conveyor belt with a production-lineoriented doctor”).
229
CROSSING THE CHASM, supra note 216, at 3-4, 9, 26-27; see also Thomas Bodenheimer, Primary Care—Will
It Survive?, 355 NEW ENG. J. MED. 861, 861-62 (Aug. 2006) [hereinafter Bodenheimer, Will It Survive?].
230
Id. at 3-4, 26-27; see also Potter, supra note 220, at 470. Chronic conditions are defined as “illnesses that
last longer than three months and are not self-limiting.” CROSSING THE CHASM, supra note 216, at 27.
231
CROSSING THE CHASM, supra note 216, at 27.
232
Id. at 9, 26-27.
233
Bodenheimer, Will It Survive?, supra note 229, at 862; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09438R, GRADUATE MEDICAL EDUCATION 3 & encl. I (2009).
234
See Bodenheimer, Will It Survive?, supra note 229, at 862-63; see also American College of Physicians, The
Impending Collapse of Primary Care Medicine and Its Implications for the State of the Nation’s Health Care: A
Report from the American College of Physicians 3 (Jan. 30, 2006) [hereinafter ACOP Report] (collecting studies
noting “dramatic decline” in the number of graduating medical students entering primary care), available at
http://www.acponline.org/ advocacy/events/state_of_healthcare/statehc06_1.pdf.
235
E.g., Kaiser Commission on Medicaid and the Uninsured, Improving Access to Adult Primary Care in
Medicaid: Exploring the Potential Role of Nurse Practitioners and Physician Assistants 1 (2011) (citing reports
showing that, by 2020, the estimated shortage of primary care physicians will be about 45,000); Thomas
Bodenheimer and Hoangmai H. Pham, Primary Care: Current Problems and Proposed Solutions, 5 HEALTH
AFFAIRS 799, 801 (2010) (projected shortage of 35,000 - 44,000 adult primary care practitioners by 2025); but
see Catherine Dower and Edward O’Neil, Primary Care Health Workforce in the United States (Research
Synthesis Report No. 22) 9-10 (July 2011) (arguing that maldistribution of primary care providers represents
more
significant
problem
than
shortage),
available
at
http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2011/rwjf402104/subassets/ rwjf402104_1.
236
ACOP REPORT, supra note 234, at 1.
237
Kaiser Commission, supra note 235, at 1, 6-7; Dower, supra note 235, at 9-10.

30

To help fill this void, nonphysician clinicians—such as NPs, PAs, and LCSWs—have
been shouldering a steadily increasing share of the primary care workload.238 As of 2010,
NPs and PAs collectively made up about thirty percent of the primary care workforce
nationally,239 and an even higher proportion in rural and other medically underserved areas.240
NPs and PAs also tend to have proportionally higher caseloads of minority and uninsured
patients relative to primary care physicians.241 The ranks of NPs and PAs engaged in primary
care are projected to continue rising due, in large part, to financial incentives and other
provisions in the Patient Protection and Affordable Care Act (“ACA”) designed to spur
growth in the nonphysician primary care workforce to care for an expanded patient
population.242
238

HEALTH RESOURCES AND SERVICES ADMINISTRATION, U.S. DEPT. OF HEALTH AND HUMAN SERVICES, THE
PHYSICIAN WORKFORCE: PROJECTIONS AND RESEARCH INTO CURRENT ISSUES AFFECTING SUPPLY AND DEMAND
50 (Dec. 2008) (finding significant growth in nonphysician clinician workforce in recent years and projecting
continuation of “rapid growth”); Kaiser Commission, supra note 235, at 3 (observing that NPs are “by far, the
fastest growing segment of the primary care workforce”); Benjamin G. Dross et al., Trends in Care by
Nonphysician Clinicians in the United States, NEW ENG. J. MED. 130-31 (2003) (analysis of survey data showed
“rapid[] increase[e]” in outpatient care provided by nonphysician clinicians between 1987 and 1997); see also
Roderick S. Hooker & Linda E. Berlin, Trends in the Supply of Physicians and Nurse Practitioners in the
United States, 21 HEALTH AFFAIRS, 174, 179 (Sept. 2002) (noting 50% increase in PA and NP graduates since
1996).
239
Agency for Health Care Policy and Research, U.S. Dept. of Health and Human Services, Primary Care
Workforce Facts and Stats No. 3: Distribution of the U.S. Primary Care Workforce, AHRQ Publication No. 12P001-4-EF (Jan. 2012) (based on statistics from 2010 National Provider Identifier dataset, AHRQ calculated
that the primary care workforce was comprised as follows: physicians – 208,807 (71%); NPs – 55,625 (19%);
and PAs – 30,402 (10%)), available at http://www.ahrq.gov/research/pcwork3.htm (last visited Jan. 25, 2013);
see also Kaiser Commission, supra note 235, at 1 (as of 2009, NPs accounted for 27% of primary care
providers, nationally and PAs accounted for 15%”); Institute of Medicine, National Academy of Science, THE
FUTURE OF NURSING: LEADING CHANGE, ADVANCING HEALTH 88 (2011) [hereinafter FUTURE OF NURSING]
(citing studies showing that, as of 2008, there were 83,000 NPs and 23,000 PAs which respectively represented
21% and 6% of the primary care workforce).
240
See Kaiser Commission, supra note 235, at 3 (discussing studies showing that NPs and PAs make up a
greater share of the primary care workforce in lower income and medically underserved areas); Kevin
Grumbach et al., Who Is Caring for the Underserved? A Comparison of Primary Care Physicians and
Nonphysician Clinicians in California and Washington, 1 ANNALS FAM. MED. 97, 101 (July/Aug. 2003) (higher
proportion of nonphysican clinicians, as compared to physicians, provide primary care in underserved areas in
two studied states); Agency for Health Care Policy and Research, U.S. Dept. of Health and Human Services,
Primary Care Workforce Facts and Stats No. 2: The Number of Nurse Practitioners and Physician Assistants
Practicing Primary Care in the United States, AHRQ Publication No. 12-P001-3-EF (Oct. 2011) [hereinafter
AHCPR, Workforce Facts No. 2], available at http://www.ahrq.gov/research/pcwork2.htm (last visited Jan. 25,
2013).
241
See Kaiser Commission, supra note 235, at 3 (NPs and PAs provide medical care for large numbers of
minority or uninsured patients); Grumbach, supra note 240, at 101 (higher proportion of nonphysican clinicians,
as compared to physicians, provide primary care to uninsured and minority patients in two studied states);
AHCPR, Workforce Facts No. 2, supra note 240, at 1.
242
Kaiser Commission, supra note 235, at 1, 6-7 (summarizing ACA provisions supporting expansion of
nonphysician clinician workforce, including: $31 million in grants to nursing schools to increase enrollment in
primary care programs through student stipends; $30 million in grants to PA schools for stipends to students in
primary care programs; and $15 million for a demonstration project to fund 10 new nurse-managed health
clinics (“NMHCs”) for three years that will provide primary care in medically underserved areas and assist in
training NPs); FUTURE OF NURSING, supra note 239, at 131-36; Mary D. Naylor& Ellen T. Kurtzman, The Role
of Nurse Practitioners in Reinventing Primary Care, 29 HEALTH AFFAIRS 893, 897 (May 2010). Several states,
spurred by the ACA, are also considering expanding the roles of NPs and PAs in primary care. See Kevin
Murphy, Advanced Practice Nurses: Prime Candidates to Become Primary Caregivers in Relation to Increasing
Physician Shortages Due to Health Care Reform, 14 J. NURSING L. 117 (2011); Carla K. Johnson, Facing
Doctor Shortage, 28 States May Expand Nurses’ Role, USA TODAY, April 16, 2010.

31

NPs and PAs, moreover, are not just increasing in numbers, but also in
comprehensiveness of care provided. Over the last several decades, state-based scope of
practice rules for NPs and PAs have expanded, providing them with increased authority to
practice independently and provide comprehensive primary care.243 A robust body of
literature has found that NPs and PAs in primary care settings provide care that is comparable
to physicians in terms of types of patients, prescribing behavior, treatment complexity,
quality of care, and patient outcomes.244 Today, though there are some variations among
states, NPs and PAs in primary care settings generally provide services that are similar to
those provided by physicians—namely, taking medical histories, diagnosing and treating
acute and chronic illnesses, prescribing and managing medications, ordering and interpreting
lab tests and x-rays, and educating and counseling patients.245 As one 2008 study concluded:
Evidence increasingly demonstrates PA/NPs have expanding practice
autonomy and scope of practice, are treating similar patients in a similar
fashion to doctors and producing equivalent outcomes, and are currently
recognized by some patients as their primary source of care, suggesting that
the role of PA/NPs in primary care may be progressing toward that of a
substitute.246
Similar dramatic changes have been observed in the mental health system. Managed
behavioral health organizations (“MBHOs”), as with MCOs for general medicine, became
dominant in the 1990s.247 Almost all mental health care in both public and private sectors is
now overseen by MBHOs.248 Indeed, according to at least one study, “[m]ental health
services appear to be managed even more rigorously than most medical and surgical
services.”249 Perhaps nowhere has that management rigor been felt as keenly as the within
the cadre of mental health professionals. MBHOs have sought, in large part, to reduce costs
by substituting other mental health professionals—chiefly, LCSWs—for psychiatrists. As a
result, since 1990, the number of LCSWs (relative to psychiatrists) has risen dramatically.250
243

FUTURE OF NURSING, supra note 239, at 97-98; Dower, supra note 235, at 13 & App. IV; Christine M.
Everett et al., Physician Assistants and Nurse Practitioners as Usual Source of Care, 25 J. RURAL HEALTH 407
(2009); Ann Ritter & Tine Hansen-Turton, The Primary Care Paradigm Shift, 20 HEALTH LAW. 21, 23-25
(April 2008); see also Potter, supra note 202, at 468.
244
E.g., Robin P. Newhouse et al., Advanced Practice Nurse Outcomes 1990-2008: A Systematic Review, 29
NURSING ECON. 230, 248 (Sept./Oct. 2011) (systematic review of published literature comparing the processes
and outcomes of care delivered by advance practice nurses (which encompasses NPs) and finding that review
“supports a high level of evidence that such nurses provide safe, effective, quality care to a number of specific
populations in a variety of settings”); Kaiser Commission, supra note 235, at 3; Mary D. Naylor & Ellen T.
Kurtzman, The Role of Nurse Practitioners in Reinventing Primary Care, 29 HEALTH AFFAIRS 893, 894-95
(May 2010); Benjamin G. Druss et al., Trends in Care by Nonphysician Clinicians, 34 NEW ENG. J. MED. 130,
136 (Jan. 2003) (finding that physicians and nonphysician clinicians treated similar types of patients).
245
E.g., Kaiser Commission, supra note 235, at 1-2; Ritter, supra note 245, at 23-25; Everett, supra note 243.
246
Everett, supra note 243.
247
David Mechanic, Mental Health Services Then and Now, 26 HEALTH AFFAIRS 2548, 1549 (2007) [hereinafter
Mechanic, Mental Health Services]; Richard G. Frank & Sherry Glied, Changes in Mental Health Financing
Since 1971: Implications for Policy Makers and Patients, 25 HEALTH AFFAIRS 601, 603 (May/June 2006).
248
Mechanic, Mental Health Services, supra note 247.
249
Id. at 1549.
250
Richard M. Scheffler & Paul B. Kirby, The Occupational Transformation of the Mental Health System, 22
HEALTH AFFAIRS 177, 178-79 (Sept. 2003); see also Frank, supra note 247, at 604 (noting that “mental health
care system has undergone remarkable changes during past three decades,” including significant increase in
nonphysician providers such as social workers); David Mechanic & Scott Bilder, Treatment of People with
Mental Illness: A Decade-Long Perspective, 23 HEALTH AFFAIRS 84, 86 (July 2004) (“Although the supply of

32

This growth trend in LCSWs is expected to continue—and perhaps accelerate—in future
years.251 Today, LCSWs represent the largest segment of the mental health care workforce
(45%), followed by psychologists (36%) and psychiatrists (19%).252 Some studies estimate
that LCSWs provide up to 65% of all mental health services. 253 LCSWs spend the majority
of their time providing direct services to clients.254 These services generally include (with
some state-to-state variation): intake and assessment of client histories; diagnosis of
psychiatric disorders; development of treatment plans; provision of direct psychotherapy or
individual counseling; and provision of crisis and case management services.255 In their
evolving role in the mental health system, LCSWs are thus providing the bulk of frontline
mental health services, and are expected to continue doing so in future years.
Taken together, the effects of managed care and other forces that have dramatically
reshaped the American health care system over the past two decades call into question the
ongoing efficacy of the treating physicians rule. Development of a sustained “Marcus
Welby”-type relationship between a single physician and patient is now rare. Instead, care
for medical and mental health conditions is generally discontinuous and fragmented between
multiple providers—including, primary physicians, specialists, NPs, PAs, and LCSWs—who
work in a variety of clinical settings.
B. Difficulty Ascertaining Treating Physician Status
Although “[t]he doctor-patient relationship is critical for vulnerable patients as they
experience a heightened reliance on the physician’s competence, skills, and good will,”256 the
question remains on which physician or non-physician do patients rely and to what extent do
they rely on a particular opinion? The shift in health care delivery challenges the treating
physician paradigm. Are the primary care physicians who serve as gatekeepers in HMO-style
traditional mental health providers such as psychiatrists and psychiatric nurses ha[d] increased only modestly
[from 1992 to 2000], there [were] larger increases in psychology and social work.”).
251
See Scheffler & Kirby, supra note 250, at 185; Bureau of Labor Statistics, U.S. Department of Labor,
Occupational Outlook Handbook, 2012-13 Edition, Social Workers (predicting that employment of social
workers will grow by 25% from 2010 to 2020), available at http://www.bls.gov/ooh/community-and-socialservice/social-workers.htm.
252
Scheffler & Kirby, supra note 250, at 185. Though not reflected in the cited figures, there are a relatively
small number of advanced practice psychiatric nurses (“AAPNs”) in the mental health workforce. See Nancy P.
Hanrahan et al., Health Care Reform and the Federal Transformation Initiatives: Capitalizing on the Potential
of Advanced Practice Psychiatric Nurses, 11 POL’Y POLIT. NURSING PRAC. 235 (Aug. 2010) (as of mid-2000s,
there were about 8700 certified APPNs, representing about 2% of the mental health workforce).
253
Scheffler & Kirby, supra note 250, at 185; see also Specialization and Integration in Mental Health Care, 25
HEALTH AFFAIRS 647, 647 (May/June 2006) (characterizing the current mental health care system as a
encompassing a “riotously pluralistic provider universe”).
254
NASW Center for Workforce Studies, Assuring the Sufficiency of a Frontline Workforce: A National Study
of
Licensed
Social
Workers
(Executive
Summary)
18-19
(2006),
available
at
http://workforce.socialworkers.org/studies/nasw_06_execsummary.pdf.
255
See NASW Center for Workforce Studies, Social Workers in Mental Health Clinics & Outpatient Facilities 1
(2011), available at http://workforce.socialworkers.org/studies/profiles/Mental%20Health%20Clinics.pdf.
LCSWs, however, cannot directly prescribe or dispense medications. See App. I at A-38 tbl. 17. Other
nonphysician clinicians may have prescribing privileges depending on state scope of practice laws. See
Hanrahan, supra note 252 (In a 2007 practice survey, “[n]early 66.5% of [certified] AAPNs who treat adults
prescribe psychotropic medications and reported that one third of their week is spent either
prescribing/managing medication regimens alone or in combination with psychotherapy.”); Carolyne Krupa,
Psychologists seek prescribing rights in 6 states, AM. MED. NEWS, March 7, 2011, http://www.amaassn.org/amednews/m/2011/03/07/pl20307.htm (last visited Jan. 27, 2013).
256
Goold & Lipkin, supra note 224, at S27.

33

MCOs (or MBHOs) the treating physician or should that designation be reserved for the
specialists to whom they refer their patients? What about the physicians who serve in a
supervisory capacity? Are they treating physicians, or should other medical professionals
who personally interact with the patients on a regular basis be considered treating sources
instead?
Judicial Responses
Courts have reacted to the change in the health care system in different ways, often by
expanding the concept of a treating source. If physicians other than traditional family
physicians or specialists warrant treating physician status, the dichotomy between treating
physicians and all other medical personnel that underlies the SSA treating physician rule has
been compromised. If more physicians contribute to the care decisions, is there reason to
privilege one opinion at the expense of others?
A sampling of cases shows that courts recently have considered physicians with
relatively sporadic treatment relationships to patients to be treating sources. For example,
where a physician treated a patient three times in three-month intervals, an ALJ gave little
weight to the physician’s opinion because of the relatively short period of time that the
physician treated the patient.257 However, the First Circuit reversed the ALJ’s decision
because the ALJ did not explain or provide a “citation in support of[] her belief that [the
physician’s] treatment relationship with the claimant [was] too abbreviated.”258
Courts have also determined that treating physician status can be shared among a
practice group—a significant departure from the original model. For instance, in Shontos v.
Barnhart, the Eighth Circuit determined that all members of a team of mental health
professionals, who rotated in evaluating the claimant, could be considered treating sources.259
This relationship is far more attenuated than the original treating physician model
contemplated.
To further confuse the standards regarding what weight is accorded to which opinion,
the Ninth Circuit has held that a physician who is informed, but does not examine the patient
personally, is not quite a treating physician, but is entitled to greater weight than an
examining physician. In Ratto v. Secretary, Department of Health & Human Services, a
district court determined that a physician who did not personally treat the claimant for four
years prior to the ALJ’s hearing, but continued to receive updates of the claimant’s medical
records, was not entitled to treating source deference.260 This opinion concluded nonetheless
that physicians in such circumstances were entitled to more weight than an examining
physician, but less than another treating physician.261 Later, in Benton v. Barnhart,262 the
Ninth Circuit debated whether a psychiatrist who managed the provision of the claimant’s
medication and received reports from other medical sources without seeing the claimant
regularly, was a treating source.263 The court relied on Ratto and found that the psychiatrist’s
257

Johnson v. Astrue, 597 F.3d 409, 411 (1st Cir. 2009).
Id.
259
Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003).
260
Ratto v. Sec’y, Dept. of Health & Human Servs., 839 F. Supp. 1415, 1425 (D. Or. 1993).
261
Id.
262
331 F.3d 1030 (9th Cir. 2003).
263
Id. at 1035-39.
258

34

opinion was entitled to greater weight than an examining physician because, unlike
physicians who evaluate a claimant’s condition based on “the cold record,” his opinion was
based on direct communication with his treatment team.264 The court noted that the
psychiatrist “had examined [the claimant] not much more than a year before his report, and
was still employed to cure” the claimant.265 The court went on to say, “[W]hile [the
psychiatrist] may be placed relatively low on the continuum of treating physicians in this
respect, he would still fall into the treating physician category. His opinion would be entitled
to greater weight than that of an examining or reviewing physician.”266
These cases reveal that, from the courts’ perspective, the distinction between treating
and other physicians has blurred. The expansion of treating physician status runs the risk of
undermining the rule itself. The original idea that the persuasiveness of medical opinion
should turn more on the frequency of visits and depth of professional judgment underlying
the medical opinion has gotten lost.
This blurring of professional lines—between treating physicians and other medical
professionals—is, moreover, increasingly reflected not just in judicial opinions, but in
medical offices as well. Indeed, the treating physician business has expanded with new
services to include doctors who see patients in high volume.267 Some evidence suggests that
many of these “high volume” doctors also serve as treating physicians for SSA disability
benefits claimants.268 This “devaluation” of the physician-patient relationship calls into
further question whether any deference—let alone “controlling weight”—should be afforded
to the opinions of this type of medical practitioner.
264

Id. at 1039.
Id. at1038.
266
Id. at 1039; see also Nyberg v. Commissioner of Social Security, 179 Fed. Appx. 589 (11th Cir. 2006)
(according treating physician status even when physician was not employed to treat the condition that caused the
disability).
267
As then Commissioner Astrue noted in the following colloquy with Representative Brady during a recent
congressional hearing on the Social Security appeals process:
265

BRADY: How about on the front end into the process not just those who are having assets
but those end providers who are enabling those to try to defraud the system with medical
disabilities. [¶] What percentage of applicants are we now identifying through the process on
the front end, you know, who are attempting to defraud the system?
ASTRUE: It's relatively small but the Disability Examiners are quite good about being alert
on these things . . . Some of our administrative law judges have been very sharp about this,
too. One of the more spectacular ones that we’re working on now can because of the very
alert ALJ. [¶] I would say if you’re going to see on one thing. I think that the treating
physician rule historically, you know, relied on the different paradigm. You know there was
a time when we all had a Marcus Welby as a personal physician and that's not true anymore.
In fact, we're increasingly seeing physicians who are essentially extensions of the lawyers
doing the representation. I mean, often sometimes physically housed within those complexes.
Disability Insurance Appeals Process: Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways
&Means, 112th Cong. *10-11 (2012).
268
For example, in August 2012, the United States Attorney in San Diego secured a guilty plea from a
psychologist on fraud charges after he falsified medical reports for Social Security disability benefits claimants;
that scheme had led to improper payments totaling $1.5 million from 2006 to 2012. Greg Moran, Psychologist
Pleads Guilty to Fraud Counts, SAN DIEGO UNION-TRIBUNE, Aug. 3, 2012, at B-2. For a similar fraudulent
scheme in the railroad industry, see William K. Rashbaum & Mosi Secret, Charges for 11 in Disability Fraud
Plot at L.I.R.R., N.Y. TIMES, Oct. 27, 2011, A-1 (reporting that “sampling of hundreds of cases approved by two
doctors showed that $121 million had been paid to workers whose disabilities were either fabricated or
exaggerated, according to court papers, though the total was quite likely more”).

35

Other Considerations
To be sure, the rationale for the treating physician rule stems not only from what was
considered to be the special relationship between patient and treating physician, but also from
the mistrust of consulting and examining physicians who are paid by SSA. Arguably, even if
the treating physician does not have better knowledge about claimants, he or she might be
considered by some to be more objective and independent.
The objectivity argument cuts both ways of course. First, given that physicians have a
fiduciary duty to those they examine,269 drawing such a marked distinction between the
weights afforded treating and all other physicians, including those paid by SSA, is not fully
persuasive since the Hippocratic Oath covers all physicians equally.
Second, as Judge Richard Posner has observed, the treating physician may show more
sympathy for patients who, even if not disabled under the statute, often have limited ability to
find gainful employment in this economy.270 Representatives of claimants often provide
questionnaires for treating physicians to fill out in ways that make a finding of disability
much easier to defend, a problem that courts have noted.271
Consider the Seventh Circuit’s comments in Butera v. Apfel.272 There, the ALJ
discounted the treating physician’s assessments, which were largely based on the claimant’s
subjective complaints of pain, and relied instead on the opinion of consulting orthopedists. In
upholding the ALJ’s decision, the court noted that it had “repeatedly stressed that ‘a
claimant’s treating physician may be biased in favor of the claimant; bias that a consulting
physician may not share.’”273 The court added that “‘[t]he patient’s regular physician may
want to do a favor for a friend and client, and so the treating physician may too quickly find
disability.’”274 This sympathy factor supports diminishing reliance on the opinions of
treating physicians in some cases.
This is not to suggest that a treating physician’s assessment should be disregarded.
Far from it. Even aside from the treating source rule, SSA’s regulations, 20 C.F.R. §§
269

Goold & Lipkin, supra note 224, at S27.
E.g., Hofslein v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006). As Judge Posner observed: “[T]he fact that the
[SSI or SSDI] claimant is the treating physician’s patient also detracts from the weight of that physician’s
testimony, since, as well known, many physicians (including those most likely to attract patients who are
thinking of seeking disability benefits) will often bend over backwards to assist a patient in obtaining benefits.”
Id.; see also Black & Decker, 538 U.S. 822, 832 (observing that “a treating physician, in a close case, may favor
a finding of ‘disabled’”); Hawkins v. First Union Corp. Long-Term Benefit Plan, 326 F.3d 914, 817 (7th Cir.
2003) (collecting cases); Flynn v. Astrue, 563 F. Supp. 2d 932, 944-45 (N.D. Ill. 2008). Other social science
research also points to potential bias by treating physicians in the context of state worker’s compensation claims.
See Seth Seabury, Robert Reville & Frank Neuhauser, Physician Shopping in Workers’ Compensation: Evidence
from California, 3 J. OF EMPIRICAL L. STUD. 47 (2006); K. Folley, Physician Advocacy and Doctor
Deception,48 FED. LAWYER 25, 25 (2001); V. Freeman, et. al., Lying for Patients: Physician Deception of
Third-Party Payers, 159 ARCHIVES OF ENVTL. MED. 2263, 2263 (1999).
271
Dixon v. Masanari, 270 F.3d 1171, 1177 (7th Cir. 2001).
272
173 F.3d 1049 (7th Cir. 1999).
273
Id. at 1056.
274
Id.; see also Dixon, 270 F.3d at 1177 (noting that “the claimant’s regular physician may not appreciate how
her patient’s case compares to other similar cases, and therefore that a consulting physician’s opinion might
have the advantages of both impartiality and expertise.”).
270

36

404.1527 and 416.927, specify that ALJs should consider the duration of a patient’s
relationship with the physician and the amount of time that a patient has spent face-to-face
with the physician. Thus, the testimony of a treating source receives far greater deference
than a physician who examines the patient only once, much less a consulting physician who
assesses only the medical files. Those aspects of the treating physician’s role should still
entitle physician opinions to considerable deference on a case-by-case basis. However, the
controlling weight formulation, by ascribing talismanic force to one of perhaps many medical
opinions in the file, focuses the search on someone who, in this evolving world of medical
practice, may no longer exist. In short, changes in the health care system have eroded the
distinction between treating physicians and all other medical personnel.
IV. EMPIRICAL ANALYSIS OF SSA DATA: TREATING PHYSICIAN RULE AND REMAND RATES
SSA has developed databases which track cases that are remanded both by courts to
the agency, and by the Appeals Council to ALJs. This Part offers a summary and an analysis
of remands in both contexts, with particular focus on the treating physician rule.
A. The Federal Courts
Over the period from 2009 to 2011, courts remanded cases back to SSA forty-five
percent of the time.275 SSA tracks these remands by grouping them into categories and
subcategories. SSA first divides the cases into ten different categories, according to the
reason or reasons a case was remanded.276 While any one case may list up to three remand
reasons, the category Opinion Evidence Evaluation & Residual Functional Capacity (“OEE &
RFC”) (of which treating source is a part) was listed with the most frequency at 54%.277 In
fact, Credibility Evaluation—the category with second highest percentage—at 19%, did not
come close to OEE & RFC’s frequency rate.278
SSA then divides the ten categories further; OEE & RFC itself contains five different
remand classifications.279 The remand reason with the highest frequency percentage by far
was the treating source.280 Out of the 14,571 cases that cited remand reasons, 5138 cases
cited the treating source as a reason for remand—a citation frequency rate of thirty-five
percent. The category with the second highest frequency percentage, RFC, trailed the
treating source percentage by twenty percent.281 The treating source category is also divided
into five subcategories282:



Opinion Not Identified or Discussed: SSA either did not identify or evaluate the
treating source’s opinion.
Opinion Rejected Without Adequate Articulation: SSA discredited the treating
source’s opinion without adequately explaining why the agency took such action.

275

See App. B at A-2 tbl. 1.
For a list of the ten categories, see App. B at A-3 tbl. 2.
277
See id. This percentage remained relatively unchanged during the 2009 – 2011 observation period. See App.
B at A-6 tbl. 5.
278
See id. at A-3 tbl. 2.
279
For a list of the five classifications, see App. B at A-4 tbl. 3.
280
See id. This percentage remained relatively unchanged during the 2009 – 2011 observation period. See App.
B at A-6 tbl. 5.
281
See id. at A-4 tbl. 3.
282
See id. at A-5 tbl. 4.
276

37





Weight Accorded Opinion Not Specified: SSA failed to clearly articulate the weight
it assigned to the treating source’s opinion.
Opinion on Issue Reserved to Agency: SSA adopted the treating source’s opinion
that a claimant is disabled without an independent finding from the agency.
Recontact Necessary: SSA failed to re-contact the treating source when clarification
was necessary.

Four of the five subcategories combined accounted for approximately thirteen out of the
thirty-five percent remand frequency rate.283 A full twenty-two percent of the cases included
the remand reason “Opinion Rejected Without Adequate Articulation.”284 This percentage is
particularly significant.
Apparently, courts often do not believe that SSA adequately explained why it
discredited the treating source’s opinion. It is plausible that SSA has in fact failed properly to
articulate its reasons. However, in light of this report’s previous discussion,285 it is also quite
plausible that courts have distorted the application of the treating physician rule. Federal
courts have applied different standards when assessing whether SSA has been sufficiently
careful in discrediting treating source opinions.286 These varying standards make it difficult
for SSA to know when it has attained the threshold required to reject an opinion.287
Moreover, federal courts (perhaps at the regulation’s invitation) turn the substantial evidence
review standard on its head. Instead of focusing on whether substantial evidence exists in the
record to support SSA’s disability finding, federal courts often focus on whether SSA found
that substantial evidence exists to justifiably discredit the treating physician’s opinion. 288 In
any event, the high remand frequency percentage rate calls into question the efficacy of the
current treating physician rule.
B. The Appeals Council
Over the period from 2009 to 2011, the Appeals Council remanded cases back to
ALJs twenty-four percent of the time.289 The OEE & RFC category (of which treating source
is a part) was the most frequently cited reason for remand at thirty-five percent. Within the
OEE & RFC category, treating source—at ten percent—was the second-most frequently
coded basis (after RFC) for remand back to ALJs.290 SSA further divides the treating source
classification into four subcategories—which is similar to the coding used for remands from
federal courts.291 Unlike the court data, however, not as much disparity exists among the
percentages. The two subcategories with the highest percentages are “Opinion Not Identified
283

See id. This percentage has remained relatively unchanged during the 2009 – 2011 observation period. See
App. B at A-6 tbl. 6.
284
See id. at A-5 tbl.4. This percentage has remained relatively unchanged during the 2009 – 2011 observation
period. See id. at A-6 tbl. 5.
285
See supra Part II.
286
These varying standards may be reflected in the varying remand rates across district courts. See App. B at A11 tbl.12.
287
See supra Part II.B.
288
See supra Part II.D.
289
See App. B at A-7 tbl. 7.
290
See id. at A-9 tbl. 10.
291
For a list of the four subcategories, see App. B at A-8 tbl. 8. Except for “Opinion on Issue Reserved to
Agency,” SSA uses the same subcategories when the Appeals Council remands a case as when a court remands
a case.

38

or Discussed” (approximately five percent) and “Opinion Rejected Without Adequate
Articulation” (approximately three percent).292
Although there is certainly room for improvement in either context, the differences in
remand rates between the federal courts and the Appeals Council are telling. The treating
source is cited with a thirty-five percent frequency rate in cases remanded by the federal
courts, but is only cited with a ten percent frequency rate in remands from the Appeals
Council. Furthermore, as previously stated, the remand reason “Opinion Rejected Without
Adequate Articulation” is cited with a twenty-two percent frequency rate in cases remanded
by the federal courts, but is only cited with an approximately three percent frequency rate in
remands from the Appeals Council. The Appeals Council is an expert body, which not only
sees well over 100,000 disability cases a year, but is also involved in quality review and
policy interpretations. If ALJs were in fact significantly failing to comply with SSA’s
treating physician rule, one would expect to see a higher remand rate from the Appeals
Council.293 As it stands, the high judicial remand rate lends support to the courts’
misinterpretation of the rule294 and the agency’s need to revisit it.
Observation on the Use of Medical Experts
It is also interesting to note the impact (or rather, lack of impact) of the presence of a
medical expert (“ME”) in the outcome of dispositions. Across the board, the presence of
MEs did not affect the disposition rate, whether fully favorable, partially favorable, or
unfavorable.295 This non-impact existed even before adjusting for the likelihood that a ME
was not present in cases that resulted in dismissal. In fact, before that adjustment, the
presence of a ME was associated with a higher fully favorable rate and a lower dismissal
rate.296 This is an important point given the context in which the treating physician rule was
first introduced by courts.297 Courts sought to shield claimants from SSA’s practice of using
its own examiners, rather than relying on claimants’ physicians. Since the presence of a ME
does not affect a case’s disposition, it appears that this protection is no longer necessary.
V. PERSPECTIVES ON THE TREATING PHYSICIAN RULE
The treating physician rule, as the Supreme Court recently observed, “has not
attracted universal adherence outside the Social Security context.”298 Only one other
agency—the Department of Labor (“DOL”)—has promulgated a regulatory standard for a
federal disability program that embraces the notion of giving special weight to opinions of
treating physicians. Indeed, several federal courts have called into question the ongoing

292

See id.
On the other hand, time pressures from the Appeals Council’s high caseload may prevent it from giving close
review to the record of each case on appeal.
294
This misinterpretation may stem from both the courts’ distortions in applying the rule and in the rule’s lack
of clarity.
295
See id.
296
See id.
297
See infra, notes 45-47 and accompanying text.
298
Black & Decker, 538 U.S. 822, 829, n.3; see also Levy, Agency-Specific Precedents, supra note 45, at 546
(noting that federal courts have, as a general matter, “explicitly declined to extend the treating physician rule
beyond the Social Security disability context”).
293

39

efficacy of a treating physician rule.299 While this reality could be a reflection of the
differences in various agencies’ statutory and regulatory programs, some scholars have also
opined that “the substantial evidence standard of review should mean the same thing under
the Social Security Act as it does under the APA or other organic statutes.”300 Representative
organizations, too, have strong opinions about the treating physician rule, and relatedly, about
the classification of “acceptable medical sources.”
A. Other Federal and State Disability Benefits Programs
1. Minority Approach: Programs With a Treating Physician Rule
Among the agencies surveyed by this report, the Department of Labor is the only
agency, outside of SSA, to have promulgated a treating physician rule applicable to a federal
disability program, specifically in its Black Lung benefits program.301 The treating physician
rule for the Black Lung program was fashioned by drawing on principles set forth in case
law, as well as on SSA’s treating physician regulation.302 DOL’s regulations guide how the
adjudication officer should weigh the opinion of a miner’s treating physician. The
adjudication officer must take the following factors into account: (1) nature of the treating
relationship; (2) duration of the relationship; (3) frequency of the treatment; and the (4) extent
of the treatment.303 When no “probative,” contrary evidence exists, the regulations compel
the adjudication officer to accept the treating physician’s statement according to the
aforementioned factors.304 In some cases, the relationship between the treating physician and
the miner may be such that the relationship should be accorded “controlling weight.”305
Controlling weight, however, is only ascribed to the physician’s opinion after the
adjudication officer assesses its credibility according to the record as a whole.306 Indeed, as
DOL emphasized when promulgating the rule, it is not outcome-determinative because it
permits the adjudicator to “consider[] the credibility of the [treating] physician’s opinion in
light of its documentation and reasoning and the relative merits of the other relevant medical
evidence of record.”307
While some scholars note that confusion marred the weighing of opinion evidence
from a miner’s treating physician prior to the promulgation of DOL’s 2000 final rules, since

299

E.g., Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003) (quoting Rodriguez v. Bowen, 876 F.2d 759,
761 (9th Cir. 1989) (“It is not necessary, or even practical, to draw a bright line distinguishing a treating
physician from a non-treating physician. Rather, the relationship is better viewed as a series of points on a
continuum reflecting the duration of the treatment relationship and the frequency and nature of the contact.”);
Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006) (“It is time that the Social Security Administration
reexamined the [treating physician] rule.”).
300
Levy, Agency-Specific Precedents, supra note 45, at 546.
301
For the treating physician rule applicable in the Black Lung program, see 20 C.F.R. § 718.104(d) (2012); see
also 30 U.S.C. § 901 et seq. (2012) for the establishment of benefits to certain coal miners and their families in
the event of the miner’s death or complete disability related to pneumoconiosis.
302
Dept. of Labor, Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, As
Amended; Proposed Rule, 64 Fed. Reg. 54,966, 54,969 (Oct. 8, 1999) [hereinafter 1999 DOL Proposed Rules].
303
20 C.F.R. § 718.104(d)(1)-(4) (2012).
304
20 C.F.R. § 718.104(d)(5) (2012).
305
Id.
306
Id.
307
Dept. of Labor, Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, As
Amended; Final Rules, 65 Fed. Reg. 79,920, 79,923, 79,931-32 (Dec. 20, 2000).

40

that time,308 circuit court cases interpreting DOL’s treating physician rule have consistently
affirmed the rule’s regulatory approach for medical opinion evidence.309 While disavowing
any “mechanical rule that the views of a treating physician prevail,”310 circuit courts
reviewing Black Lung decisions affirm the rule’s basic approach—namely, that the
“‘opinions of treating physicians are entitled to greater weight than those of non-treating
physicians,”311 so long as opinions from treating sources are “‘properly credited and
weighed.’”312
DOL’s Black Lung regulation, however, defines neither “treating physician” nor
“controlling weight.” By declining to define these terms, DOL intended to “require the
factfinder to recognize the additional weight to which a physician’s opinion may be entitled,
in light of all of the other relevant evidence [in the] record,” rather than to predetermine “the
outcome of a factfinder’s evaluation.”313 In some ways, then, DOL’s rule affords greater
flexibility than SSA’s rule. Another key difference between DOL and SSA is that DOL’s
regulations govern one medical issue—pneumoconiosis—that involves respiratory and
pulmonary conditions. SSA, on the other hand, may see any medical issue or combination of
medical issues resulting in full disability.
Additionally, while DOL has not promulgated regulations establishing a treating
physician rule with respect to the adjudication of benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”),314 some federal courts have nonetheless engrafted
a judicially created treating physician rule into this program.315 Courts have asserted that an
ALJ is “bound by the expert opinion of a treating physician as to the existence of a disability
‘unless contradicted by substantial evidence to the contrary.’”316
308

See, e.g., Brian C. Murchison, Due Process, Black Lung, and the Shaping of Administrative Justice, 54
ADMIN. L. REV. 1025, 1094 (2002).
309
E.g., Eastover Mining Co. v. Williams, 338 F.3d 501, 512-13 (6th Cir. 2003) (discussing and applying with
approval the treating physician rule embodied in DOL’s 2000 final rules); William S. Mattingly, If Due Process
Is a Big Tent, Why Do Some Feel Excluded from the Big Top?, 105 W.VA. L. REV. 791, 810 (2003) (collecting
cases).
310
Ziegler Coal Co. v. OWCP, 490 F.3d 609, 616 (7th Cir. 2007) (internal quotations omitted); see also
Peabody Coal Co., v. Groves, 277 F.3d 829, 834 (6th Cir. 2002).
311
Peabody Coal, 277 F.3d at 834 (quoting Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1042 (6th Cir.
1993)).
312
Id.; see also Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997) (noting that a treating
physician’s opinion may be “‘deserving of especial consideration,’” but that consideration is not bestowed
automatically).
313
1999 DOL Proposed Rules, supra note 302, at 54,977; see also Eastover, 338 F.3d at 512-13 (“The [treating
physician] regulation [in the 2000 final rules] says nothing about prioritizing a treating physician’s perspective;
rather, the regulation expects ALJs to analyze the nature and duration of the doctor-patient relationship along
with the frequency and extent of treatment.”); Mattingly, supra note 309, at 810 (observing that, by declining to
define the term “treating physician,” DOL’s 2000 final rule leaves open the issue of how such a relationship
may be established: “Whether such a treating relationship is established on one occasion or over a course of
years goes unaddressed and will be left for practitioners and ALJs to iron out.”).
314
See 33 U.S.C. § 901 et seq. (2012) for the establishment of benefits to certain employees and their families in
the event of the employee’s death or complete disability occurring upon or related to the navigable waters.
315
This engrafting was prior to Black & Decker, 538 U.S. 822 (2003). See infra, Part V.A.2.
316
See Pietrunti v. Director, OWCP, 119 F.3d 1035, 1042 (2d Cir. 1997) (citing Alston v. Sullivan, 904 F.2d
122, 126 (2d Cir. 1990)); see also Bath Iron Works Corp. v. Preston, 380 F.3d 597, 609 (1st Cir. 2004) (ALJ
based his finding of total disability on, among other evidence, the uncontroverted opinion of the claimant’s
treating physicians); Amos v. Director, OWCP, No. 96-70988, 1998 U.S. App. LEXIS 33883, *9 (9th Cir. 1998)
(“Where an injured employee seeks benefits under the LHWCA, a treating physician’s opinion is entitled to
special weight.”).

41

Outside these two contexts, however, our research did not reveal any federal disability
benefits programs apart from the Social Security Act in which adjudicators were governed by
a treating physician rule, either by regulation or federal case law.
2. Majority Approach: No Treating Physician Rule
By far, the majority approach for adjudications under disability benefits programs—in
both federal and state contexts—is not to afford special weight to the opinions of treating
sources through either regulatory standards (by agencies) or case law (by courts). Most
prominently, in the context of Employee Retiree Income Security Act of 1974 (“ERISA”), 317
the Supreme Court rejected the Ninth Circuit’s attempt to impose a treating physician rule—
patterned after SSA’s rule—on ERISA plan administrators when making benefits
determinations under private employer-sponsored disability plans.318 At issue in Black &
Decker was the denial of a disability benefits claim by an employee with degenerative disc
disease by the plan administrator of Black & Decker Corporation’s ERISA-covered employee
welfare benefit plan. The employee then filed suit, challenging the Black & Decker
Disability Plan in federal court.319 The employee’s principle argument was that the plan
administrator improvidently credited the opinion of an independent (i.e., consulting)
neurologist over his treating physicians. The district court rejected the employee’s argument
and granted summary judgment to the plan administrator.320
On appeal, the Ninth Circuit summarily reversed and held that the employee was
entitled to summary judgment. The Ninth Circuit emphasized that, under controlling circuit
precedent, ERISA plan administrators are bound to follow the same treating physician rule
applied to adjudication of claims arising under Social Security’s disability benefits
programs.321 As applied in the ERISA context, the Ninth Circuit characterized SSA’s rule as
requiring a plan administrator to “reject the conclusions of the treating physicians only if the
administrator ‘gives specific, legitimate reasons for doing so that are based on substantial
evidence in the record.’”322 Because the defendant plan administrator had failed to do so, the
Ninth Circuit found an abuse of discretion.323
The Supreme Court not only unanimously rebuffed the Ninth Circuit’s attempt to
judicially impose a treating physician rule in the ERISA context,324 but also called into
question the efficacy of the treating physician rule generally. The Court based its decision on
several considerations. The Court noted that neither ERISA, nor the Secretary of Labor’s
implementing regulations, imposed a heightened burden of explanation on administrators
when they reject a treating physician’s opinion.325 In the absence of such a statutory or
regulatory mandate, judicial imposition of a treating physician rule was wholly inappropriate.
Additionally, and perhaps most important here, the Court questioned the efficacy of the
treating physician rule as a means of increasing the accuracy of disability determinations. 326
317

See 29 U.S.C. § 1002 et seq. (2012) for the establishment of minimum standards for pension plans in private
industry.
318
See generally, Black & Decker, 538 U.S. 822 (2003).
319
Nord v. The Black & Decker Disability Plan, No. CV 99-0408 CM, 2000 U.S. Dist LEXIS 22824 (C.D. Cal.
2000) [hereinafter Nord I].
320
Nord I, 2000 U.S. Dist LEXIS at *26-27.
321
Nord v. The Black & Decker Disability Plan, 296 F.3d 823, 830-31 (9th Cir. 2002).
322
Id. at 831.
323
Id. at 831-32.

42

Various classes of medical professionals, the Court noted, have comparative pluses and
minuses depending on the particular case—treating physicians may (or may not) have a better
longitudinal perspective on their patients’ conditions, consulting physicians repeatedly hired
by benefit plans may (or may not) be more prone to bias in favor of the plan, and specialists
may (or may not) enjoy a greater depth of knowledge. 327 In this light, the Court cautioned
that the treating physician rule’s built-in evidentiary bias in favor of treating physicians might
prove improvident in some cases and suggested further empirical study of the rule:
But the assumption that the opinions of a treating physician warrant greater
credit than the opinions of plan consultants may make scant sense when, for
example, the relationship between the claimant and the treating physician has
been of short duration, or when a specialist engaged by the plan has expertise
the treating physician lacks. And if a consultant engaged by a plan may have
an “incentive” to make a finding of “not disabled,” so a treating physician, in a
close case, may favor a finding of “disabled.” Intelligent resolution of the
question whether routine deference to the opinion of a claimant’s treating
physician would yield more accurate disability determinations, it thus
appears, might be aided by empirical investigation of the kind courts are ill
equipped to conduct.328
The cautionary note sounded by the Supreme Court in Black & Decker applies as well, it
would seem, to Social Security’s disability benefits programs. Indeed, as detailed in earlier
parts of this report, our legal and empirical assessment of SSA’s treating physician rule
suggests that the rule’s “routine deference” to treating physicians may no longer be
warranted.
Federal courts have also refused to impose a treating physician rule with respect to
several other statutory disability programs when the responsible federal entity—the
Department of Veterans Affairs’ (“VA”) Board of Veterans Appeals, Railroad Retirement
Board, and the Department of Health and Human Services’ (“HHS”) Departmental Appeals
Board (“DAB”)—declined to adopt such a rule. In summary, these cases held as follows:


Board of Veterans Appeals: In White v. Principi,329 the Federal Circuit held that the
Board of Veterans Appeals need not afford special weight to treating physician
opinions in determining entitlement to veterans’ benefits for service-connected
disabilities.330 The court found that the VA’s statute and regulations not only failed to
provide a basis for judicial adoption of a treating physician rule, but also, “in fact,
appear to conflict with such a rule.”331 The court concluded: “[G]iven the
comprehensive statutory and regulatory scheme for the award of veterans’ benefits, it

324

Black & Decker, at 825 (holding that “the Ninth Circuit erroneously applied a ‘treating physician rule’ to a
disability plan governed by ERISA”).
325
Id. at 831.
326
Id. at 832.
327
Id.
328
Id. at 832 (emphasis added).
329
243 F.3d 1378 (Fed. Cir. 2001).
330
Id. at 1381-82.
331
Id. at 1381 (“[T]he VA benefits statutes and regulations do not provide any basis for the ‘treating physician
rule’ and, in fact, appear to conflict with such a rule.”).

43





would not be appropriate for this court to impose the ‘treating physician rule’ on the
VA.”332
Railroad Retirement Board: Similarly, in Dray v. Railroad Retirement Board,333 the
Seventh Circuit rejected importation of a treating physician rule for disability
determinations under the Railroad Retirement Act of 1974. The court reasoned that in
the case of multiple physicians, “it remains the province of the hearing officer to
decide whom to believe—a treating doctor whose experience and knowledge about
the case may (or may not) be relevant to understanding the claimant’s condition or a
consulting specialist who may bring expertise and knowledge about similar cases.”334
Departmental Appeals Board: The DAB provides independent review of disputed
decisions in a wide range of HHS programs under more than sixty statutory
provisions.335 Part of its job includes overseeing nursing facilities that participate in
the Medicare and Medicaid programs.336 In Golden Living Center v. Secretary of
Health & Human Services,337 the Sixth Circuit affirmed the DAB’s imposition of a
civil penalty on the plaintiff’s nursing home for failure to provide adequate care for a
patient. Citing SSA’s treating physician rule, the nursing home claimed that the DAB
(and ALJ) erred by failing to defer to its treating physicians. The Sixth Circuit
rejected application of the treating physician rule, noting that it had “no applicability”
to nursing facility enforcement cases.338 In addition, in the Medicare reimbursement
context, a treating physician rule has also been rejected.339

A majority of state courts have likewise refused to import a treating physician rule
into state worker’s compensation programs.340 Some courts rejecting a treating physician
rule have reasoned that it would unduly interfere with discretion accorded the finder of fact to
weigh conflicting medical opinions.341 Other courts have questioned the wisdom of
332

Id.
10 F.3d 1306 (7th Cir. 1993).
334
Dray, 10 F.3d at 1311.
335
For additional information about the DAB and its adjudicatory responsibilities, see the explanation provided
by the Dept. of Health & Human Servs. on its website, available at http://www.hhs.gov/dab/.
336
See 42 U.S.C. § 1395i-3 (2012); 42 C.F.R. § 483.1 et seq. (2012).
337
656 F.3d 421 (6th Cir. 2011).
338
Id. at 426 n.3. A district court in another circuit, the Second Circuit, has similarly refused to hold the treating
physician rule to apply to Medicare cases. Murphy v. Sec’y of Health & Human Servs., 62 F. Supp. 2d 1104,
1107 (S.D.N.Y. 1999); see also Hosp. Serv. Dist. No. 1 of Lafourche v. Thompson, 343 F. Supp. 2d 515, 524
(E.D. La. 2004) (same).
339
Rendzio v. Sec’y of Health, Educ. & Welfare, 403 F. Supp. 917, 919 (E.D. Mich. 1975) (“the plaintiff’s
physician is entitled to be weighed along with the other evidence, it should not be given additional weight”).
The opinion even notes that according treating physicians special weight in Medicare cases may invite
“substantial abuses in the program.” Id. (quoting Weir v. Richardson, 343 F. Supp. 353, 357 (S.D. Iowa 1972)).
340
See Conradt v. Mt. Carmel Sch., 539 N.W.2d 713, 717 (Wis. Ct. App. 1995) (noting majority rule and
observing that “[a] handful of states allow trial courts to give greater deference to the testimony of an attending
physician, yet without creating a presumption that this is so”) (emphasis removed); see also 8 ARTHUR LARSON
& LEX K. LARSON, LARSON'S WORKERS’ COMPENSATION LAW § 130.05D[4][b] (2002) (discussing state court
decisions).
341
E.g., Doyle v. Pub. Emp.s’ Ret. Sys., 808 So. 2d 902, 907 (Miss. 2002) (“The law contains no such duty of
deference [to the treating physician], and . . . this Court cannot reweigh the facts.”); Dillon v. Whirlpool Corp.,
19 P.3d 951, 953-54 (Or. Ct. App. 2001) (“[D]ivided medical opinion leaves the Board in the position of
evaluating the evidence.”); Conradt, 539 N.W.2d at 716 (“[I]t is for [the state commission] to decide if one
expert’s testimony is more persuasive than another’s.”); Ashe v. Workmen’s Comp. Appeal Bd., 648 A.2d 1306,
1308 (Pa. Commw. Ct. 1994) (“[T]he weighing of testimony is solely within the province of the referee, and his
decision to accept testimony of one competent witness over another will not be disturbed on appeal.”); Gibson v.
333

44

categorically deferring to the opinions of treating physicians.342 For similar reasons, New
York courts have rejected the treating physician rule for disability determinations under the
State’s employee retirement system.343
B. Views of Claimant Representative Organizations
In an effort to represent and understand different perspectives on the treating
physician rule, we contacted both NOSSCR and NADR,344 two of the most prominent
claimant representative organizations. Both organizations believe “that the current
regulations and polices provide detailed guidance for adjudicators and the public.”345
While the organizations do not take issue with the content of the treating physician
rule itself, they do harbor serious reservations about its application. One of the main
concerns both NOSSCR and NADR discuss is their belief that SSA often fails to provide
adequate reasons when it discredits a treating source’s opinion.346 NOSSCR notes that
members of its organization review hundreds of federal court cases involving SSDI and SSI
disability claims each year.347 Many of those cases result in remand, and many of those
remands occur because SSA has not sufficiently supported its reasons for discounting and
even rejecting the treating source’s opinion.348 NADR compounds NOSSCR’s concern by
claiming that SSA fails to apply its rulings.349 Those rulings explain how SSA should
evaluate a treating physician’s opinion, particularly explaining when the agency should give
the opinion controlling weight and how the agency should explain its decision when it does
not.350
When asked whether the organizations would have any concern if SSA weighed all
evidence under the same standards, regardless of the source of evidence, NOSSCR and
City of Lincoln, 376 N.W.2d 785, 791 (Neb. 1985) (“[T]he ‘trier of fact’ remains the sole judge of a witness’
credibility and the testimony’s weight.”).
342
E.g., McClanahan v. Raley’s Inc., 34 P.3d 573, 577 (Nev. 2001) (“We do not agree that because a physician
has a duty to cure a patient that the physician will necessarily be more familiar with an issue.”); Gibson, 376
N.W.2d at 791 (“Generally, an expert witness' firsthand knowledge is a factor which may affect such witness’
credibility and weight given to the testimony from that expert, but presence or absence of firsthand knowledge
does not, by itself, necessarily establish preference or priority in evidentiary value.”).
343
E.g., Irish v. McCall, 747 N.Y.S.2d 610, 611 (App. Div. 2002) (“We have adhered to the view that the
Comptroller is vested with the authority to resolve conflicts in medical opinion and credit the testimony of one
medical expert over another.”).
344
See Letter from Nancy G. Shor, Exec. Dir. Nat’l Org. of Soc. Sec. Claimants’ Reps., to Amber Williams,
Att’y Advisor Admin. Conf. of the U.S. (Dec. 19, 2012) (copy attached App. E: Letter from Nat’l Org. of Soc.
Sec. Claimants’ Reps., p. A-19) [hereinafter NOSSCR 2012 Letter]; Letter from Trisha Cardillo, Pres. Nat’l
Ass’n of Disability Reps., to Amber Williams, Att’y Advisor Admin. Conf. of the U.S. (Dec. 28, 2012) (copy
attached App. F: Letter from Nat’l Ass’n of Disability Reps., p. A-24) [hereinafter NADR 2012 Letter].
345
NOSSCR 2012 Letter, supra note 344, at A-20; see also NADR 2012 Letter, supra note 344, at A-25.
However, NADR, in particular, believes that adjudicators at the DDS level could benefit from further training
about how to apply the rule. See NADR 2012 Letter, supra note 344, at A-26. NADR also expresses the view
that both ALJs and DDS adjudicators would benefit from reinforcement of the rule requiring them “to recontact
the treating physician when additional information or clarification is needed, before ordering a consultative
examination.” Id.
346
See NOSSCR 2012 Letter, supra note 344, at A-22; NADR 2012 Letter, supra note 344, at A-30.
347
See NOSSCR 2012 Letter, supra note 344, at A-22.
348
Id.
349
See NADR 2012 Letter, supra note 344, at A-30.
350
Id. The rulings also explain how to consider medical source opinions on issues reserved for the
Commissioner. Id.

45

NADR expressed similar views.351 Both organizations oppose weighing all evidence under
the same standard. NOSSCR emphasized that treating source opinions are (and should be)
afforded controlling weight so long as well-supported and consistent as set forth in the
current regulations (see §§ 404.1527(c)(2) and 426.927(c)(2)); only if treating source
opinions do not meet these standards should they be weighed just like other medical
evidence.352 NADR, as well, stated that it “would strongly oppose a change in existing policy
to allow SSA to weigh all evidence under the same standards.”353 NADR supports SSA’s
hierarchy of medical sources and fears that if different medical sources are weighed
according to the same standards, they would in fact receive the same weight.354
Although both NOSSCR and NADR support the treating physician rule, they do
suggest that it be revised in one respect. Currently, only a specific subset of medical
professionals—namely, physicians, psychologists, optometrists, and speech-language
pathologists—are considered “acceptable medical sources” that may be considered treating
sources.355 Given changes in the health care system over the last several decades, NOSSCR
and NADR recommend that SSA expand the definition of “acceptable medical sources” to
include NPs, PAs, and LCSWs.356 NOSSCR and NADR suggest broadening the regulatory
scope of “acceptable medical sources” to include these nonphysician clinicians for three
reasons: (1) these clinicians increasingly serve as primary providers of physical and mental
health care, yet their opinions—despite guidance provided by SSA in SSR 06-03p—are often
ignored or downplayed in the adjudication process; (2) their inclusion as “acceptable medical
sources” would streamline the disability claims process since consultative examinations
would no longer be needed to confirm their diagnoses or opinions about the severity of
impairments;357 and (3) each of these three professions are licensed and credentialed under
state law.358
351

In a prior draft of this report, we characterized NOSSCR’s letter as expressing the view that the organization
did “not seem to harbor any concern” should all medical opinion evidence be evaluated under the same
standards, regardless of source. See SSA DISABILITY BENEFITS PROGRAMS: ASSESSING THE EFFICACY OF THE
TREATING PHYSICIAN RULE 45-46 (Feb. 22, 2013) (draft report). Subsequently, NOSSCR representatives
informed the Administrative Conference that this statement did not accurately reflect the organization’s
position. See Letter from Nancy G. Shor, Exec. Dir., NOSSCR & Ethel Zelenske, Dir. of Gov’t Affairs,
NOSSCR to Amber Williams, Att’y Advisor, Admin. Conf. of the U.S. (Mar. 1, 2013) (on file with ACUS).
The description of NOSSCR’s position on this point has, accordingly, been modified and is reflected herein.
352
See NOSSCR 2012 Letter, supra note 344, at A-22.
353
See NADR 2012 Letter, supra note 344, at A-30.
354
Id.
355
See 20 C.F.R. §§ 404.1502, 404.1513(a), 404.1513(d), 404.1527(c) (2012); see also 20 C.F.R. §§ 416.902,
416.913, 416.917 (2012).
356
See NOSSCR 2012 Letter, supra note 344, at A-21 - A-23; NADR 2012 Letter, supra note 344, at A-26 - A27.
357
Because there is insufficient publicly available information relating to the use of consultative examinations in
situations noted by NOSSCR and NADR, we did not assess this claim. As a general matter, however, SSA has
noted in the past that use of consultative examinations, when needed, adds time and expense to the disability
adjudication process. See Optometrists as “Acceptable Medical Sources” To Establish a Medically
Determinable Impairment, 72 Fed. Reg. 9239, 9239 (Mar. 1, 2007) (noting, in final rule amending list of
“acceptable medical sources” to include licensed optometrists, that revised regulation “will allow us to make
more decisions based on medical evidence supplied to us solely from optometrists, rather than having to
purchase time-consuming and expensive consultative examinations”).
358
Id.; see also Social Security Ruling 06-03p, Titles II and IVI: Considering Opinions and Other Evidence
from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on
Disability by Other Governmental and Nongovernmental Agencies (2006), reprinted in 71 Fed. Reg. 45,593
(Aug. 9, 2006); Nat’l Law Center on Homelessness and Poverty, Improving Access: Expanding Acceptable
Medical Sources for the Social Security Disability Determination Process (2012) [hereinafter NLCHP,

46

While SSA did not specifically task the Conference with examining the regulatory
definition of “acceptable medical source” as it relates to the treating physician rule, the
comments from NOSSCR and NADR prompted us to do so in order to assess their suggested
regulatory revision and to explore the efficacy of the existing evidentiary framework for
“other” medical sources (i.e., those falling outside the scope of “acceptable medical sources”)
in light of SSR 06-03p. Our study of this issue included: research in medical journals and
related literature; review of federal court opinions (primarily, from district courts) applying
SSR 06-03p; and review of publicly available information on state license and credential
requirements for NPs, PAs, and LCSWs. Our findings follow below.
1. Evaluation of Call for Expansion of Definition of “Acceptable Medical Sources”
As an initial matter, NOSSCR and NADR rightly note that, over the last two (or
more) decades, PAs, NPs, and LCSWs have shouldered an ever-increasing share of the
primary care workload due to the rise of managed care and other factors. As detailed earlier
in this report, NPs and PAs now make up about one-third of primary care providers
nationally, with a higher proportion (relative to primary care physicians) practicing in rural or
medically underserved areas or serving minority, low income, or uninsured patients.359 A
large body of medical and other literature demonstrates that PAs and NPs have expanded
practice autonomy and scope of practice as compared to twenty years ago, and are providing
care in primary care settings comparable to physicians; for many patients, these clinicians are
their usual provider of care.360 Moreover, with respect to the provision of mental health
services, LCSWs now represent the single largest segment of the mental health workforce.361
Today, LCSWs are providing the bulk of frontline mental health services, and are projected
to continue doing so in coming years.362
One of the practical effects of the changed medical landscape is significant dissonance
between the existing regulatory scheme for medical evidence (which assigns second-tier
evidentiary value to the opinions of NPs, PAs, and LCSWs because they are not granted
“treating source” status) and the realities of the current health care system (i.e., for many
claimants, these medical professionals are their usual, treating sources).363 This “regulatory
Improving Access: Expanding Acceptable Medical Sources] (study cited by NOSSCR that recommends
expansion of “acceptable medical sources” given import of this definition to homeless disability claimants),
available at http://www.nlchp.org/content/pubs/5.14.12%20Improving%20Access,%20FINAL.pdf.
359
See supra Part III.A. SSA, too, has acknowledged the rise of managed care in the preamble to SSR 06-03p.
See infra Part V.B.2.
360
Id.
361
Id.
362
Id.
363
For examples of these nonphysician clinicians serving as treating providers, see, e.g., Bowman v. Astrue, 511
F.3d 1270, 1273-74 (10th Cir. 2008) (NP treated claimant as primary medical provider for various conditions,
including asthma, arthritis, tuberculosis, post-surgical wrist problems, anxiety and depression); Frantz v. Astrue,
509 F.3d 1299, 1300 (10th Cir. 2007) (claimant treated at VA hospital for bipolar disorder and anxiety never
had treating physician; mental health services provided by clinical nurse specialist instead); Dixon v. Astrue,
2011 U.S. Dist. LEXIS 37518 (D. Kan. 2011) (claimant treated for mental impairments by NP and LCSW, no
treating sources); Hoy v. Astrue, 2011 U.D. Dist. LEXIS 61181 (W.D. Va. 2011) (NP was claimant’s primary
treating mental health provider); White v. Comm’r of Soc. Sec., 302 F. Supp. 2d 170 (W.D.N.Y. 2004) (LCSW
served as “sole source who had treating relationship” with claimant for treatment of mental impairment and
alcohol dependence); White v. Comm’r of Soc. Sec., 302 F. Supp. 2d 170, 175-76 (W.D.N.Y. 2004) (LCSW
was “sole source that had treating relationship with [claimant]”); NLCHP, Improving Access: Expanding

47

lag” raises two distinct problems. First, in this era of managed care, if long-term treating
relationships with medical professionals are to be had, such relationships tend to be with NPs,
PAs, or LCSWs, rather than physicians.364 By categorically excluding these medical
professional clinicians from the definition of “acceptable medical source,” the current
regulations may impede due consideration (and weighing) of the very sort of “detailed,
longitudinal”365 medical perspectives that served as the touchstone for the treating source rule
when promulgated in 1991. For example, in Sloan v. Astrue, the claimant had a five-year
treating relationship with an LCSW from whom she sought treatment for mental illness
because she could not afford the out-of-pocket costs of a psychiatrist.366 The ALJ, after
noting the report of a DDS examining psychologist, flatly rejected the treating LCSW’s
assessment of the severity of claimant’s mental impairment and his RFC simply because she
was not a psychiatrist:
So, I don’t have any other opinions, I guess, from well, I have the counseling
opinion, from the social worker, but as I said, we don’t get real excited about
social workers just because it’s sort of a pecking order of authority, and
usually in a mental case a person is seen by a psychiatrist.367
The Eight Circuit held that the ALJ’s summary dismissal of the treating LCSW’s opinions
constituted reversible error and remanded the case back to SSA for administrative
rehearing.368
Second, blanket exclusion of these nonphysician providers from “acceptable medical
source”/“treating source” status creates inequities for disability claimants who, because of
where they live, their insurance coverage (or lack thereof), or their financial situation, may
have no choice but to use NPs, PAs, or LCSWs as their usual source of medical or mental
health care.369 Indeed, for this reason, at least one district court has called on SSA to revise
Acceptable Medical Sources, supra note 358, at 4, 6-7; Yvonne Perret et al./National Academy of Social
Insurance, Improving Social Security Disability Programs for Adults Experiencing Long-Term Homelessness 810 (Nov. 2008) [hereinafter Perret/NASI, Improving Social Security Disability for Homeless Adults], available
at http://www.nasi.org/ usr_doc/Perret_and_Dennis_January_2009_Rockefeller.pdf.
364
E.g., Bowman, 511 F.3d at 1273-74 (13-year treating relationship between NP and claimant); Sloan v.
Astrue, 499 F.3d 883, 885-86 (8th Cir. 2007) (LCSW treated claimant’s mental impairments for 5 years,
including monthly counseling sessions); Shadwick v. Astrue, 2011 U.S. Dist. LEXIS 24220 (N.D. Okla. Jan. 24,
2011) (NP treated complainant “on a regular basis” for 2 years); Tracey v. Astrue, 2011 U.S. Dist. LEXIS 31410
(E.D. Cal. 2011) (NP provided long-term treatment for chronic pain syndrome); Albert v. Astrue, 2011 U.S.
Dist. LEXIS 62993 (D. Ariz. April 4, 2011) (treating NP saw claimant on a consistent basis for 3 years); Hoy,
2011 U.D. Dist. LEXIS at *9-12 (NP saw claimant on bi-weekly basis for 5 years to adjust medications, monitor
mental status, and make clinical assessment of level of functioning); Foster v. Astrue, 826 F. Supp. 2d 884, 886
(W.D.N.C. 2011) (finding that LCSW had a “lengthy [treating] relationship” with claimant and worked with
him “on a consistent and regular basis”).
365
1991 Final Rules, supra note 2, at 36,961, 36,969.
366
Sloan v. Astrue, 499 F.3d 883 (8th Cir. 2007).
367
Id. at 886.
368
Id. For other examples of ALJs rejecting the opinions of NPs or LCSWs simply because they were not
“acceptable medical sources,” see Canales v. Astrue, 698 F. Supp. 2d 335, 344 (E.D.N.Y. Mar. 2010); White,
302 F. Supp. 2d at 175-76; Bailey v. Astrue, 725 F. Supp. 2d 1244, 1255-56 (E.D. Wash. 2010); Vasquez v.
Astrue, 2009 U.S. Dist. LEXIS 28337 (E.D. Wash. Apr. 3, 2009).
369
Kohler v. Astrue, 546 F.3d 260, 262, 268 (2d Cir. 2008) (ALJ erred when failing to consider opinion of
treating NP “particularly because [she] was the only medical professional available to [claimant] for long
stretches of time in the very rural ‘North Country’ of New York State”); Sloan, 499 F.3d at 885-86, 889
(remanding case to SSA based on ALJ failure to consider opinions of treating LCSWs, noting that claimant was

48

its regulation. At issue in Richard v. Astrue370 was the plaintiff’s contention that the ALJ
failed to give proper weight to the opinions of his treating medical providers, including an
LCSW who had treated his mental impairment for several years. The court examined SSA’s
regulatory scheme for “acceptable medical sources” and concluded that, under these rules, the
ALJ did not err when declining to give controlling weight to the opinions of the plaintiff’s
treating LCSW. Nonetheless, the court went on to note the inequities caused by exclusion of
LCSWs from “accepted” medical sources and called on SSA’s to consider revising its rules:
This disparaging designation of social workers [as outside the list of
“acceptable” medical sources] is probably unjustified and certainly should be
reconsidered. Clinical social workers are often the applicant’s primary
clinician, see the applicant the most often, and have the professional training
and experience to offer assessments fully equal to those of other clinicians
currently deemed “acceptable.”371
While the court in Richard ended up affirming SSA’s denial of disability benefits, the
court’s views on “acceptable medical sources” nonetheless highlight the fact that the current
regulatory scheme, which assigns second-tier evidentiary status to LCSWs (and other
nonphysician clinicians), conflicts with the practical realities of managed care and may cause
inequities for some disadvantaged claimants.
To be sure, there are countervailing considerations when evaluating the expansion of
“acceptable medical sources” to include these categories of medical professionals, including
the need for sufficient uniformity of state law-based educational and professional
requirements given the nationwide scope of SSA’s disability benefit program. SSA last
addressed this issue in 2000, when it issued a final rule adding licensed or certified school
psychologists, licensed podiatrists, and qualified speech-language pathologists to the list of
“acceptable medical sources.”372 SSA, in response to a commenter’s recommendation that
NPs also be included as acceptable medical sources, declined such an expansion and stated:
We have . . . provided in these final rules that podiatrists and speech-language
pathologists may be acceptable medical sources, not only because of their
unique qualifications, but because we have determined that there is sufficient
standardization of their qualifications across States for us to provide rules for
their general use in claims. We have not determined this for other specialties
[such as NPs]. Therefore, we believe it would be inappropriate to add these
additional specialties at this time.373
“a seriously ill person of very limited means who lack[ed] the ability to afford a psychiatrist”); Frantz, 509 F.3d
at 1300 (claimant-veteran treated at VA hospital assigned NP for treatment of mental illness, rather than
physician); Tracey, 2011 U.S. Dist. LEXIS at *21-23 (holding that ALJ erred by failing to provide specific
reasons for rejecting opinions of treating NP, and noting that “reliance on paraprofessionals such as NPs may be
greater in rural or other areas of low population such as Lone Pine, California . . . where [the NP] oversaw
[claimant’s] long-term treatment”); see also NLCHP, Improving Access: Expanding Acceptable Medical
Sources, supra note 358, at 4, 6-7; Perret/NASI, Improving Social Security Disability for Homeless Adults,
supra note 363, at 8-10.
370
2011 U.S. Dist. LEXIS 63457 (D. Mass. June 15, 2011).
371
Id. at *15.
372
Medical and Other Evidence of Your Impairment(s) and Definition of Medical Consultant, 65 Fed. Reg.
34,950 (June 1, 2000) [hereinafter 2000 Final Rule].
373
Id. at 34,955 (emphasis added).

49

SSA, at least insofar as Federal Register notices, has not publicly addressed this issue since
2000. We thus conducted research to provide some perspective on current state law-based
standards for NPs, PAs, and LCSWs relating to education, license/credentials, and scope of
practice. We found their respective educational and professional requirements to be fairly
uniform and on par with other nonphysician medical professionals currently deemed
“acceptable medical sources.” As shown in Table 15, the education and licensing
requirements for NPs, PAs, and LCSWs are rigorous and comprehensive. For licensure, each
of these medical professions require: graduation from a specialized, nationally-accredited
program (which, except for PAs, must be a post-graduate program at the masters or doctoral
level); hundreds to thousands of hours of pre-licensure clinical practice; and, successful
completion of a licensing examination which, with one exception, is administered
nationally.374 Maintaining licensure also requires profession-specific continuing education
and renewal every one to six years, depending on applicable national (certification) or state
(license) requirements.375 Taken together, these education and licensing requirements
compare favorably with other nonphysician medical professionals whom SSA currently
considers “accepted” medical sources.376
State scope of practice standards show greater variance. However, while these rules
vary markedly from state to state in some respects—most notably for NPs, they exhibit
fundamental commonalities as well. For PAs and LCSWs, the state-by-state variance is less
pronounced. For LCSWs, scope of practice standards are essentially uniform across the
country (and several U.S. territories), with the only differences arising in the terminology
used in state laws or rules referring to LCSWs.377 In all states, LCSWs may practice
independently to assess, diagnose, and treat mental, behavioral, and psychiatric disorders; no
states afford social workers prescriptive authority.378 PAs, as well, show consistency in scope
of practice standards. All states (and some U.S. territories) give PAs prescriptive authority
and permit these clinicians to provide a comprehensive range of medical services, including
diagnosing and treating illnesses, ordering and interpreting tests, assisting in surgery, and
making rounds at hospitals and nursing homes.379 With respect to PAs, the scope of practice
variations arise relative to oversight requirements. While all states require some type of
oversight or supervision of PAs by physicians or other specified medical professional (such
as osteopaths), the manner and extent of such oversight varies from state to state.380
Typically, such oversight need not be on-site and may consist of telecommunication
availability (e.g., telephone or email) or chart reviews.381 Most states require written
documentation delineating the role of the PA in any particular public or private medical
practice.382
374

See App. I at A-36 tbl. 15 (Licensing Standards for NPs, PAs, and LCSWs). The single exception is
licensure in California for LCSWs. California administers its own state-level examination for LCSW
candidates. Id.
375
Id.
376
See NLCHP, Improving Access: Expanding Acceptable Medical Sources, supra note 358, at 12-14
(comparing licensing standards for NPs, PAs, and LCSWs with standards for optometrists and speech
therapists).
377
See App. I at A-38 tbl. 17.
378
Id.
379
Id.
380
Id.
381
Id.
382
Id.

50

NPs exhibited the widest variance in state-by-state scope of practice standards. In 17
states and the District of Columbia, scope of practice rules permit NPs “full practice”—
namely, providing them with the authority to evaluate patients, diagnose, order and interpret
diagnostic tests, initiate and manage treatment, and prescribe medication independently
without physician oversight.383 Nine other states afford NPs similar practice autonomy
except that oversight by physicians or other specified medical professionals is required for
prescribing certain classes of medication.384 Lastly, in the other 24 states, PAs’ practice
authority is circumscribed by requiring some form of oversight by a physician or other
specified medical professional.385 However, as with PAs, the oversight requirements for NPs
in the vast majority of these states do not require the on-site presence of a physician, relying
instead on measures such as phone and email contact, or review of a certain percentage of
charts.386 In the near future, NPs may be governed by more uniform standards in each state.
In 2008, professional nursing bodies developed a consensus model for regulation of
Advanced Practical Nurses, including NPs.387 This model rule provides states with
standardized language addressing licensure, accreditation, certification, calls for licensure of
NPs solely by state boards of nursing, and specifies that NPs should be independent
practitioners with no requirements for physician supervision, collaboration, or supervision.388
To date, states are in various stages of implementation. For example, five states and one U.S.
territory have fully implemented the model rule, and twelve other states are nearing complete
implementation.389
On balance, we think that NOSSCR and NADR’s views on the evaluation of medical
opinions from NPs, PAs, and LCSWs bear some force. Individuals now increasingly visit
NPs, PAs, and LCSWs for their direct primary care needs, whether such care relates to
physical or mental health, or to ambulatory or chronic conditions. Any of these nonphysician
clinicians now serve as treating sources (whether or not formally recognized as such in SSA’s
current regulations) in any particular case depending, for example, on the nature of a
claimant’s medical issue(s), insurance status, or geographical location. This blurring of oncedistinct professional roles, moreover, adds another wrinkle to the conundrum of the treating
physician rule: If NPs, PAs, and LCSWs can rightly be characterized as “accepted”/“treating”
sources (and research suggests that, at least with respect to quality of care, education and
licensing, and scope of practice, they can be in most circumstances), then the rule is drained
of its force. A rule predicated on affording controlling weight to a single, “treating” source
383

See App. I at A-37 tbl. 17 (Scope of Practice Standards for NPs).
Id.
385
Id.
386
Id. These 24 states variously describe physician oversight in terms of “delegation,” “collaboration,” or
“supervision,” but, as a general matter, such variations in phraseology have little practical impact on the actual
scope or nature of the requisite oversight. See Ritter, supra note 245, at 24-25. Only 7 of these states require
the on-site presence of a physician and, even then, the requirements are minimal (e.g., once per month, 10% –
20% of NP’s practice time). Id. Some states also relax oversight requirements for NPs in medically
underserved areas. Id.
387
See National Council of State Boards of Nursing, Consensus Model for APRN Regulation: Licensure,
Accreditation,
Certification
&
Education
(2008),
available
at
https://www.ncsbn.org/
Consensus_Model_for_APRN_Regulation_July_2008.pdf.
388
Id.
389
See National Council of State Boards of Nursing, Consensus Model for APRN Regulation: Licensure,
Accreditation, Certification & Education, NCSBN’s APRN Campaign for Consensus: State Progress toward
Uniformity, https://www.ncsbn.org/2567.htm (last visited Feb. 1, 2013) (maps of state-by-state implementation
status).
384

51

cannot coexist with multiple treating sources. But, on the other hand, blanket exclusion of
NPs, PAs, and LCSWs from “accepted”/“treating” source status is to ignore the evolving
nature of their role in our current health care system. It is likely that the tension created by
this conundrum will continue—if not increase, given the ever-increasing role of these
nonphysician clinicians in the provision of frontline treatment for physical and mental
health—until addressed by SSA through regulatory changes or other program-wide
directives.
2. SSR 06-03p: Review of Federal Caselaw Suggests This Ruling Is Not Providing
Intended Clarity
Aside from raising the issue of expansion of the definition of “acceptable medical
sources,” the comments from NOSSCR and NADR also state that agency guidance to
adjudicators (SSR 06-03p) that was intended to “clarify” evaluation of opinions from “other
sources,” has been roundly ignored (or downplayed) in practice.390 We examined federal
district court cases issued from 2009 to 2012 to gauge the merit of their contention. This
review showed that, despite the issuance of SSR 06-03p, proper consideration of opinions
from “other sources” remains a significant issue.
In August 2006, SSA issued SSR 06-03p which, among other reasons, was issued “to
clarif[y] how [the agency] consider[s] opinions and other evidence from medical sources who
are not ‘acceptable medical sources.’”391 The preamble posits two reasons for this
clarification—that the current regulations provided no specific criteria to evaluate evidence
from “other sources” and the growth of managed care meant that medical professionals other
than “treating sources” (such as NPs, PAs, and LCSWs) “were increasingly assuming a
greater percentage of the treatment and evaluation functions formerly handled by physicians
and psychologists.”392 The ruling thus purports to offer aid to adjudicators when evaluating
evidence from these nonphysician practitioners who may be “valuable sources” of evidence
on impairment severity and functioning.393
The “Policy Interpretation” section of the ruling sets forth several evidentiary
guideposts for adjudicators. First, the ruling notes that, while the five factors enumerated in
§§ 404.1527(d) and 416.927(d) expressly apply only to opinions from “acceptable medical
sources,” they “can be applied” in the context of evaluating opinions from “other sources”
because they represent “basic principles” for the assessment of evidence.394 Second, the
ruling underscores the evidentiary hierarchy in the current regulations which affords greater
weight to medical opinions from “acceptable medical sources” because these sources “‘are
the most qualified health care professionals.’”395 Nonetheless, opinions from a medical
practitioner who is not an “acceptable medical source” may “under certain circumstances”
390

E.g., NADR 2012 Letter, supra note 344, at A-27, (“While SSR 06-03p gives guidance on accepting medical
opinions from sources other than those who are deemed ‘acceptable’ by SSA, it is often the case in current
adjudication . . . that medical evidence from years of treatment with a PA, NP, or LCSW is swept aside.”); see
also Soc. Sec. Admin, Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable
Medical Sources” in Disability Claims (2006), reprinted in 71 Fed. Reg. 45,593 (Aug. 9. 2006).
391
SSR 06-03p, supra note 389, at 45,594-95.
392
Id. at 45,595.
393
Id.
394
Id.; see also id. at 45,596 (“Opinions from non-medical sources . . . should be evaluated by using the
applicable [five] factors.”).
395
Id. at 45,596 (quoting 65 Fed. Reg. 34,955 (June 1, 2000)).

52

outweigh opinions from medical sources (including treating sources) if, for example, that
practitioner has a better longitudinal perspective of the claimant’s functioning and has
superior supporting evidence.396 Third, while drawing a distinction between what
adjudicators “must consider” versus “must explain” in their decisions, the ruling suggests that
they “generally should explain the weight given to opinions from “other sources.”397
While SSR 06-03p was issued with the laudatory goal of clarifying the evaluation
(and potential importance) of opinions from “other” medical sources—including PAs, NPs,
and LCSWs—who are not deemed “acceptable medical sources,” our review of federal case
law shows that the ruling has not had the intended effect. Even years after the issuance of
SSR 06-3p, some ALJs still ignore the opinions of NPs, PAs, and LCSWs,398 while others
reject such evidence out of hand because they are not “accepted” medical sources—even
when these nonphysician clinicians are opining on severity or functionality which are matters
plainly within their evidentiary province.399 Still others fail to explain the weight given to, or
their bases for discounting, such evidence.400 As well, several districts courts have expressed
frustration with ambiguity in SSR 06-03p regarding whether the ruling provides binding
guidelines for agency adjudicators. For example, among the district courts in the Sixth
Circuit, there is an interpretive schism.401 One view holds that, based on permissive language
used in the ruling—such as distinguishing between what ALJs “must consider” and “should
explain” and noting that ALJs “generally should” explain weight given to opinions—ALJs
are not required either to explain weight given opinions from “other sources” or to provide
rationale for discounting them.402 Another view holds that SSR 06-03p requires an ALJ to
explain the consideration (and weight) given opinions from medical providers who are not
“acceptable medical sources,” and, if they fail to do so, it constitutes reversible error.403
Indeed, to get an empirical understanding of the impact of SSR 06-03p on SSA
disability adjudications, we undertook a comprehensive review of all federal district court
cases published in the LEXIS database from 2009 to 2012 that applied this ruling in the
context of medical opinions offered by NPs, PAs, and LCSWs.404 From this review, we
created a database that cataloged each decision by outcome (affirmance, remand, or
reversal).405 In all, the database included the outcomes of just over 600 district court cases
from every federal circuit, except the District of Columbia (which had no relevant published
decisions during these three years).406 Analysis of the results from these cases demonstrated
that, from an empirical perspective, SSR 06-03p has not clarified for adjudicators the issue of
proper consideration of opinions from NPs, PAs, and LCSWs. As shown in Table 13, the
396

Id. at 45,596.
Id.
398
E.g., Zambrano v. Astrue, 2012 U.S. Dist. LEXIS 41997 (E.D. Okla. Mar. 27, 2012); Maynor v. Astrue, 2011
U.S. Dist. LEXIS 83105 (D. Tenn. July 8, 2011); Phillips v. Astrue, 2010 U.S. Dist. LEXIS 19830 (W.D. Wash.
Jan. 6, 2010); Watson v. Astrue, 2008 U.S. Dist. LEXIS 113304 (D. Or. Dec. 4, 2009).
399
See supra note 367 (collecting cases).
400
E.g., Frantz, 509 F.3d at 1302-03; Shadwick, 2011 U.S. Dist. LEXIS at *24-27; Hoy, 2011 U.S. Dist. LEXIS
at *11-12; Selinsky v. Astrue, 2010 U.S. Dist. LEXIS 65494 (N.D.N.Y. June 30, 2010); Neal v. Astrue, 2009
2009 U.S. Dist. LEXIS 86470 (S.D. Ohio Sept. 2, 2009); Youngblood v. Astrue, 2009 U.S. Dist. LEXIS 113980
(D. Kan. Nov. 2, 2009).
401
See Southward v. Astrue, 2012 U.S. Dist. LEXIS 127501 (D. Mich. Sept. 7, 2012) (collecting cases).
402
Id.
403
Id.
404
For a detailed description of how this database of federal cases was constructed and analyzed, see App. H.
405
Id.
406
Id.
397

53

average remand rate for federal cases applying SSR 06-03p to opinions of these nonphysician
clinicians was slightly higher (46.5%) than the average remand rate for all federal cases
during the same time period that involved denial of disability benefits (45%).407 Moreover,
the data also show that federal cases applying SSR 06-03p to medical opinions from NPs,
PAs, and LCSWs have increased significantly over the last several years. Table 14 illustrates
the high growth rate in these cases since 2010,408 which is consistent with SSA data
evidencing a similar trend.409
Taken together, the number of cases still being remanded by federal courts for
erroneous treatment of opinion evidence from “other sources” after the issuance of SSR 0603p, along with the intra-circuit interpretive schism among district courts in the Sixth Circuit
(and, perhaps, other federal courts), suggest that there are ambiguities in this ruling that
warrant revision or clarification for the ruling to have its intended effect of ensuring that
potentially valuable evidence from NPs, PAs, and LCSWs is properly considered in the
adjudication process.

VI. SSA REGULATORY OPTIONS TO IMPROVE EVALUATION OF MEDICAL OPINION
EVIDENCE RELATING TO DISABILITY CLAIMS
This part first identifies the fundamental principles that should guide any effort to
alter, by regulation, the treating physician rule. It then lays out in general terms the principal
options that SSA may wish to consider in drafting any such regulation. The particular
content of such regulation is beyond the scope of this report.
A. Guiding Principles
First, any changes to the treating physician rule should be based on the fact that the
current regulations have not provided the clarity SSA sought to achieve when it enacted these
regulations in 1991.410 The treating source is cited with a ten percent frequency as the basis
for remand from the Appeals Council to ALJs.411 While disability cases are complex, both
ALJs and the Appeals Council are experts on SSA regulations; the frequency with which the
treating source is cited as remand reason belies the rule’s underlying purpose—to clarify, not
confuse. It can thus be assumed that the regulations did not achieve the hoped-for clarity for
adjudicators or the public.
407

Compare App. H at A-33 tbl. 13 (Outcome of District Court Cases Applying SSR 06-03p) with App. at A-2
tbl. 1 (Frequency of Court Filings and Remand). Table 9 also underscores the fact that outcomes in disability
benefits cases are not uniform across federal circuits. See App. B at A-11 tbl. 9. For cases applying SSR 0603p, nearly one-half of the circuits fell outside the normal decisional distribution (as measured by one standard
deviation). District courts in the First, Fourth, and Eighth Circuits affirmed the studied cases at a proportionally
higher rate, while courts in the Seventh, Tenth, and Eleventh Circuits did so with respect to reversals or
remands. Id.
408
See App. H at A-34 tbl. 14 (Total Number of District Court Cases Applying SSR 06-03p, By Circuit (2009 –
2012)).
409
See Cited Remandable Reasons on Court Remands, FY 2011, Prepared by ODAR/OESSI/DNIA (Oct. 19,
2011) (“heat map” showing that, from FY2010 to FY2011, federal cases remanded for reasons related to “nonmedical sources” had some of the highest year-over-year percentage increases of all cited OEE & RFC-based
remands) (data on file with ACUS).
410
For a description of the hierarchy of physician’s opinions and how to weigh a non-treating source’s opinion,
see supra Part I.B.3.
411
See App. B at A-7 - A-8 tbls. 8 & 9.

54

Second, any revisions made to the regulations should note the varying standards
among the various federal circuit courts, both before, and in the over twenty years since, the
1991 regulations.412 SSA attempted to promote a uniform standard to administer its national
disability benefits programs. This commendable goal has been less than successful as the
circuits have largely continued to apply their own common law to the treating physician
context. Indeed, at the district court level, the rate for remands involving the treating
physician rule is quite high—the treating source is cited 5138 times as a remand reason,
which is about a thirty-five percent frequency rate.413 Indeed, of the bases for remand by
federal courts tracked by SSA in recent years, treating physician rule-based remands
represent the most frequently cited category of remands.414 It may be that the time is right in
light of Black & Decker and related cases, for the Supreme Court to issue a decision on this
rule.
Third, any proposed regulation should acknowledge the fact that the nature of the
United States’ health care delivery system has changed significantly over the course of the
last twenty years.415 The Marcus Welby model no longer exists.416 Moreover, the distinction
between treating physicians and other medical practitioners (or practice groups) has become
blurred as claimants seek medical treatment or consultations from primary care physicians,
specialists, NPs, PAs, LCSWs, etc. With numerous types of managed care models—and the
rise of specialists—one can no longer safely assume a patient-claimant will have a long-term
relationship with a single medical professional. Even if a patient-claimant has a long-term
relationship with a medical professional, one can no longer assume that the relationship will
be with an “acceptable medical source,” as the term is currently defined. In the situation
where a claimant does have a traditional relationship with a treating source, that source’s
opinion should be accorded substantial weight. However, given the way the delivery of
health care has evolved over the last two decades, not only should such weight be ascribed to
that source’s opinion only after careful assessment of the relationship between the claimant
and his or her source, but also the type of source that is included in the “acceptable medical
source” category should be reconsidered.
Fourth, any alterations to the treating physician rule should take into account the
efficacy (or lack thereof) of the treating physician rule in other state and federal
administrative contexts.417 Only one agency—DOL—has affirmatively adopted its own rule,
and even then, only in one context. All other administrative bodies trust the fact-finder to
effectively and fairly weigh the medical opinions before him or her. Moreover, when a court
sought to introduce the treating physician rule in a new context—ERISA—the Supreme
Court itself not only unanimously blocked that effort, but called into question the very
efficacy of the rule in increasing the accuracy of disability determinations.

412

For an analysis of the various standards applied by the federal courts, see supra Parts I.B.2 and II.
See App. B at A-4 tbl. 3.
414
See id. at A-3 - A-4 tbls. 2 & 3.
415
For a description of changing structure of health care delivery, see supra Part III.A.
416
See Astrue June 2012 Testimony, supra note 13 (“I think the treating physician rule historically, you know,
relied on the different paradigm. You know there was a time when all we had [was] a Marcus Welby as a
personal physician and that’s not true anymore.”).
417
For a survey of the treating physician rule in other contexts, see supra Part V.A.
413

55

Fifth, any regulatory changes should assert a reviewing court’s obligation, under
established principles of administrative law, to give effect to a validly promulgated SSA
regulation.418 An agency’s regulations are validly promulgated when they are issued
according to the agency’s statutory authority and are not arbitrary or capricious. Courts have
long-recognized SSA’s “exceptionally broad” authority to issue regulations governing the
kinds of evidence, and the weight assigned to that evidence in adjudications. 419 Therefore,
where the Social Security Act vests authority in SSA to issue regulations and the agency has
not exceeded that authority, a court’s “review is limited to determining whether the
regulations promulgated . . . are arbitrary and capricious.”420 A regulation is considered
arbitrary and capricious if it has no supporting reasonable basis. “In order to avoid judicial
reversal of its action as arbitrary and capricious, an agency must engage in ‘reasoned
decisionmaking,’ defined to include an explanation of how the agency proceeded from its
findings to the action it has taken.”421 When substantively reviewing an agency’s
interpretation of its own regulation, courts must “give the agency the benefit of the doubt as
to the meaning of its regulation.”422 Furthermore, when an agency engages in on-the-record
fact-finding, a court may only set aside an agency’s action “if it is ‘unsupported by
substantial evidence.’”423 The Supreme Court has noted that “[t]he ‘substantial evidence’ test
itself already gives the agency the benefit of the doubt, since it requires not the degree of
evidence which satisfies the court that the requisite fact exists, but merely the degree that
could satisfy a reasonable factfinder.”424
Sixth, should SSA decide to undertake regulatory revisions, the agency should strive
to make the regulations as clear as possible. Using a term or phrase that has meaning in
another, related context ought to be avoided.425 As well, phraseology in headings (and in the
text of rules rule) should be as consistent as possible across all parts of the regulations, so that
terms do not have different meanings in different places.426
418

A definitive prediction of courts’ adoption of new regulations may be hazardous since—given the history of
creating their own treating physician rules—some courts may not accord the regulations appropriate deference.
See supra Part II.D.
419
See infra Part VI.B.; see also Schisler III, 3 F.3d at 567 (noting that the treating physician rule specifically
falls within the scope of SSA’s authority to “guide adjudicators in their evaluation . . . of the opinions of treating
physicians and the weight they should receive”); Heckler, 461 U.S. at 466 (noting that “Congress has ‘conferred
on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social
Security] Act”) (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).
420
Heckler, 461 U.S. at 466; see also Schweiker, 453 U.S. at 44 (describing a court’s review as limited to
“ensuring the [Commissioner] did not ‘[exceed] his statutory authority’ and that the regulation is not arbitrary or
capricious”) (quoting Batterton v. Francis, 432 U.S. 416, 426 (1977))); see also 5 U.S.C. § 706(2)(A) (2012)
(“The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).
421
PIERCE, supra note 190, at 1022.
422
Allentown Mack v. NLRB, 522 U.S. 359, 377 (1998) (describing the standard by which a court will review
agency action).
423
Id. (quoting 5 U.S.C. § 706(2)(E)). For a definition of the substantial evidence standard, see infra Part I.A,.
424
Allentown Mack, 522 U.S. at 377 (emphasis in original).
425
For example, 20 C.F.R. §§ 404.1527(b)(2), 416.927(b)(2) use the term “substantial evidence” to label certain
evidence an adjudicator should take into account when deciding whether to assign controlling weight to a
treating physician’s opinion. When courts review SSA’s decisions, they do so according to the “substantial
evidence standard.” Using the same term invites conflation and confusion.
426
For example, the current regulations use the term “medical” in ways that may be construed as inconsistent.
That is, sometimes “medical” appears to connote a term of art (e.g., “We need evidence from acceptable medical
sources to establish whether you have a medically determinable impairment.” (20 C.F.R. §§ 404.1513(a),
416.913(a) (2012)); “Medical opinions are statements from physicians and psychologists and other acceptable
medical sources . . . about the nature and severity of your impairment.” (Id. at §§ 404.1527(a)(2), 416.927(a)(2)

56

B. Regulatory Options
At least one court has explicitly invited SSA to revisit the treating physician rule:
This [treating physician] rule, now codified in social security regulations,[] has
been around a long time and is cited and discussed in innumerable cases.[] Its
meaning and utility, however, are uncertain. It seems to take back with one
hand what it gives with the other, and as a result to provide little in the way of
guidance to either administrative law judges or counsel. It is time that the
Social Security Administration reexamined the rule.427
If SSA were to take the court up on its invitation, there are a number of options (and of
course several variants on each) for addressing the treating physician rule. As the Second
Circuit has noted:
[t]he Secretary’s authority to promulgate regulations concerning ‘proofs and
evidence’ in disability cases under Section 405(a) is “exceptionally broad” . . .
The regulations [regarding the treating physician rule] fall within the scope of
Section 405(a)’s grant of authority because they guide disability adjudicators
in their evaluation of the “nature and extent of . . . proofs and evidence.”
Specifically, they instruct [disability adjudicators] on the evaluation of the
opinions of treating physicians and the weight they should receive.428
One approach would be to consider adopting DOL’s version of the treating physician
rule: guide the adjudicator by providing the various factors he or she must take into account
(much like SSA does today when the ALJ does not give the treating physician’s opinion
controlling weight), but do not provide a definition of either “treating physician” or
“controlling weight.” While the regulations would give the ALJ greater flexibility, the
trajectory of circuit courts’ precedent would likely undermine this flexibility by continuing to
impose the courts’ own varied interpretations of the treating physician rule.429
Another approach would be to consider eliminating the special evidentiary preference
(“controlling weight”) generally afforded treating physician opinions. Many of the problems
with the treating physician rule stem from its rigidity. ALJs instead should have the freedom
to decide whether to follow a treating source’s opinion based on the five factors listed in 20
C.F.R. §§ 404.1527 and 416.927.430 ALJs’ decisions then could be reviewed based upon the

(2012)); and “[O]nly ‘acceptable medical sources’ can give us medical opinions.” (SSR 06-03p)). On other
occasions, however, it appears to have a broader meaning (e.g., “Medical sources refers to acceptable medical
sources, or other health care providers who are not acceptable medical sources.” Id. at §§ 404.1502, 416.902
(2012)) Such usage makes the rules more difficult to understand and potentially invites confusion.
427
Hofslien v. Barnhart, 439 F.3d 375, 376-77 (7th Cir. 2006).
428
Schisler III, 3 F.3d at 567 (citing Heckler, 461U.S. at 466).
429
This tendency of the circuit courts may be further exacerbated by the fact that the DOL regulations were
inspired by SSA’s rule. As previously noted, another court has also called on SSA to revise its regulation
defining “acceptable medical source.” See Richard v. Astrue, 2011 U.S. Dist. LEXIS 63,457 (D. Mass. June 15,
2011).
430
As has been noted before, the five factors include: (1) length of the treatment relationship and the frequency
of examination; (2) nature and extent of the treatment relationship; (3) supportability; (4) consistency; and (5)

57

reasonableness of their application of factors such as length and frequency of visits to
physicians (or other “accepted” medical sources) rather than any errors in articulating the
correct “weight” to afford particular medical opinions.431
To be sure, testimony from treating sources could still be afforded more weight than
other medical sources because of the frequency and nature of the claimants’ visits to those
treating sources. But other evidence in the record may be more probative. Duren v. Astrue432
provides a helpful example. There, in affording the treating source’s opinion little weight,
the ALJ pointed to the inconsistencies within a treating source’s opinion and the fact that the
physician only treated the claimant twice.433 The reviewing court did not consider whether
the ALJ’s reasons for rejecting the treating source’s opinion were specifically articulated and
persuasive enough under judicial precedent. Instead, it persuasively concluded that it was
“entirely reasonable for the administrative law judge to question the reliability of the opinion
in light of the treatment notes, . . . with [the physician] having seen plaintiff only twice before
deeming her disabled.”434 Duren suggests an appropriate common sense approach to
evaluation of physician testimony. The length-of-treatment factor served as a proxy for
determining that the physician did not have a sufficiently nuanced picture of the claimant’s
condition to merit substantial deference.435 The focus was on the probity of all evidence in
the record.
Eliminating the “controlling weight” aspect of the treating physician rule, therefore,
would enable ALJs to assess claimant credibility or inconsistencies in the medical evidence
without surmounting a “clear and convincing” or “substantial evidence” hurdle. And, if the
“controlling weight” default was excised, SSA might become less susceptible to the credit-astrue rule. Thus, the ALJ—who is in a better position to evaluate evidence—would have more
flexibility in weighing all medical evidence, including physician testimony, medical charts,
and the testimony of claimants.
ALJ decisions would stand based on the thoroughness of their reasoning, inviting the
reviewing courts to focus on whether the ALJ’s decision is supported by substantial evidence
in the entire record, including treating source opinion, other medical testimony, and
credibility findings. The role for reviewing courts may become more consistent with that in
other administrative law contexts—determining whether substantial evidence exists in the
record as a whole to support the agency’s determination.436 The reviewing court’s focus
would be trained on the disability determination, not the precise categorization of medical
professionals and the formal weight to be afforded their opinions.
It must be acknowledged, however, that desirable elimination of the “controlling
weight” formula is unlikely to produce a sea change in federal court remand rates. Some
circuits would likely accept such a change and apply substantial evidence review
specialization. There is also a catch-all factor which allows claimants to bring to SSA’s attention anything else
that may either support or contradict an opinion.
431
As discussed previously, the efficacy of the current definition of “acceptable medical source” may also be
questionable. See supra Parts III.A and V.B.
432
622 F. Supp. 2d 723 (W.D. Wis. 2009).
433
Id. at 733.
434
Id.
435
20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (2012).
436
See supra Part V.A.2.

58

accordingly.437 Yet, the last two decades have demonstrated that a number of circuits may
continue to apply their own precedent, just as they did after the promulgation of the 1991
regulations.438 It would take a few years to determine whether the circuits accepted the new
rule. If the circuits continued to apply their own standards, SSA could seek a uniform rule by
seeking Supreme Court review should a split in circuit courts arise.439
As this report shows, a strong, routine presumption for the treating physician opinion
is no longer viable. The structure of physician practices has changed sufficiently to
undermine the “controlling weight” formulation used for the past two decades. And, the
unanticipated difficulties in applying the treating physician rule may have resulted in awards
to claimants who are not disabled. Accordingly, eliminating the weight automatically
ascribed to the treating physician and focusing instead on the length and depth of the
relationship between physician and patient as just two critical factors to consider in weighing
the totality of the circumstances may be the better course to follow. This is especially true
given both the pace at which health care has changed in the last twenty-five years and the
unanticipated ways it may change in the future under the recent passage of the Affordable
Care Act. Although this change may not result in a substantial alteration of the remand rate
from federal court, the change would encourage reviewing courts to shift their focus to
determine whether there is substantial evidence in the record to support the agency’s
determination that a claimant is not disabled. Such a change may also assist the Appeals
Council, either with respect to its appellate or post-effectuation review of ALJ decisions.
It is, of course, SSA’s decision on how best to proceed with the question of whether to
revise the treating physician rule. The last twenty years have given SSA ample experience by
which to judge the efficacy of the rule, as it has been applied both in its own adjudications
and in district and circuit courts proceedings. The Office of the Chairman of the
Administrative Conference of the United States believes that the Social Security
Administration has the experience and knowledge it needs to decide how best to proceed on
the question of the treating physician rule.

437

See App. D: Circuit Court Standards Relating to the Treating Physician Rule.
Id.
439
One cannot be sure that the Supreme Court would grant a petition for certiorari or, what the outcome would
be if the Court did take the case, notwithstanding the result in Black & Decker, 538 I/S/ 822 (2003). However,
in attempting to achieve a national standard, this may be the most viable option.
438

59

APPENDICES
APPENDIX A: METHODOLOGY
During the course of this study, we (1) reviewed statutes, regulations, and other
publicly available information relating to SSA’s disability benefits programs that relate to the
treating physician rule; (2) analyzed SSA-provided data in order to identify the impact of this
rule at both the administrative level and in the federal courts; (3) reviewed federal case law,
law review articles, and treatises addressing SSA’s treating physician rule; (4) documented
the changing nature of the U.S. health care system through review of medical journals,
federal and non-profit statistical resources, and other publicly available sources; and (5)
conducted legal research on the evidentiary weight afforded the opinions of treating sources
in other federal and state statutory disability benefits programs. Our review and research
were supplemented by a questionnaire that was sent to both NOSSCR and NADR, as well as
by interviews of SSA officials, ALJs, decision writers, and attorneys.

A-1

APPENDIX B: ANALYSIS OF SSA DATA ON REMAND RATES BY FEDERAL COURTS AND THE
APPEALS COUNCIL
1. Frequency of Court Remands
SSA provided two datasets with information about court remands. The first provided
summary information on the number of court filings and remands, while the second provided
information on reasons for remand of individual remanded cases.
It should be noted that the summary frequencies reflect the number of cases filed and court
remands issued during a fiscal year, and thus do not necessarily reflect the same cases. Cases
filed in a particular year are often decided in subsequent years, and therefore the number of
remands is not based only on the cases filed in that year. Assuming that the rate of court
filings and court decisions is stable over time, the ratio of remands to cases filed should
approximate the percentage of cases filed that are remanded.
Table 1: Federal Court Filings and Remands, By Year (FY2009 – 11)
Court Filings
Remands Issued
Fiscal
During Fiscal
During Fiscal
Percent
Year
Year
Year
Remanded
2009*
6441
3085
48%
2010
13106
6182
47%
2011
14648
6171
42%
Total
34195
15438
45%
(Note: Percentages are only approximate, because remand decisions may be issued in a
different year than court filing. *Only 6 months of data were available for 2009.)

2. Reason for Court Remand
Detailed reasons for remand were available for 14,571 cases remanded by the courts between
2009 and 2011. Some remands were excluded from this data by SSA due to inability to
match the remands to other system data. Thus, the number of remands included in this
analysis is less than total reported above.
Remand reasons were classified by a specific code, which fell into one of 10 categories:
Substantial Gainful Activity (“SGA”), Severe/Non-severe, Adult listings, Child listings,
Credibility Evaluation, Opinion Evidence Evaluation & Residual Functional Capacity (“OEE
& RFC”), Past Relevant Work, Grid/Vocational Expert, Dismissal/Procedural, and
Miscellaneous.
Each case listed up to three remand reasons, and a particular case was included in the
frequency counts for each category listed. As such, each case could be included in multiple
categories, and the listed frequencies are not mutually exclusive.
The frequency of remand reason categories are summarized in Table 2. The most common
reason was OEE & RFC, which comprised 54% of the remands. This category involves
remands related to application of the treating physician rule, as well as other medical
evidence and issues related to RFC.
A-2

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Table 2: Federal Courts-Relative Frequency of Remand Reasons, By Category
(FY2009-11)

Category
Number
1
2
3
4
5
6
7
8
9
0

Category Label
Frequency
SGA
161
Severe/Non-Severe
2160
Adult Listings
665
Child Listings
158
Credibility Evaluation
2727
OEE & RFC
7864
Past Relevant Work
639
Grid/Vocational Expert
2306
Dismissal/Procedural
124
Miscellaneous
3086
Total Remands
14571
(Note: Remand categories are not mutually exclusive.)

Frequency
Percent of
Remands
1%
15%
5%
1%
19%
54%
4%
16%
1%
21%

SGA
Severe/Non-Severe
Adult Listings
Child Listings
Credibility Evaluation
OEE & RFC
Past Relevant Work
Grid/Vocational Expert
Dismissal/Procedural
Miscellaneous
0%

10%

20%

30%

A-3

40%

50%

60%

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Of the OEE & RFC remands, a substantial number were due to issues involving the treating
source (remand codes 611, 612, 613, 614, 615). These reasons were indicated on 5138
remands, 35% of the total. The most common issue involving the treating source was
“Opinion rejected without adequate articulation.”
Table 3: Federal Courts-Relative Frequency of OEE & RFC Remands, By Subcategory
(FY2009-11)

Remand Reason
Codes
Frequency
Treating Source
611-615
5138
Consultative Examiner
621-624
803
Non-Examining Source
631-634
471
Non-Medical Source
641-644
278
Residual Functional Capacity
651-661
2226
Total OEE & RFC
7864
Total remands
14571
(Note: Remand categories are not mutually exclusive.)

Frequency
Percent of
Remands
35%
6%
3%
2%
15%
54%

Treating Source
Consultative Examiner
Non-Examining Source
Non-Medical Source
Residual Functional Capacity
0%

10%

20%

A-4

30%

40%

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Table 4: Federal Courts-Relative Frequency of Treating Source Remands, By
Subcategory (FY2009-11)

Remand
Code

Remand Reason
Treating Source - Opinion not identified or
611
discussed
Treating Source - Opinion rejected without adequate
612
articulation
Treating Source - Weight accorded opinion not
613
specified
Treating Source - Opinion on issue reserved to
614
agency
615
Treating Source - Recontact necessary
Total Remands Related to Treating Source
Total Remands
(Note: Remand categories are not mutually exclusive.)

Frequency

Frequency
Percent of
Remands

1069

7%

3266

22%

476

3%

9

<1%

442
5138
14571

3%
35%

Treating Source - Opinion not identified
or discussed
Treating Source - Opinion rejected
without adequate articulation
Treating Source - Weight accorded
opinion not specified
Treating Source - Opinion on Issue
Reserved to Agency
Treating Source - Recontact Necessary
0%

5%

10%

15%

20%

25%

3. Changes Over Time in Remands Related to the Treating Source
The proportion of remands related to OEE and RFC did not change significantly over the
three year period 2009 - 2011, nor did the proportion related to the treating source. Analysis
of yearly trends in specific remand reasons did not yield any substantial changes. A small
change was observed in the use of reason 611 (Treating Source – Opinion not Identified or
Discussed), and this change was statistically significant, χ2 (2) = 25.3, p<.001. However, the
magnitude of the change was quite small: 9% in 2009, 7% in 2010 and 2011.

A-5

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Table 5: Federal Courts-Annual Trends in Frequency of OEE & RFC and Treating
Source Remands (FY2009-11)

FY
2009
2010
2011
Total

OEE &
Treating
Total
RFC
Frequency Source Frequency
Remands Remands
Percent
Remands
Percent
2937
1554
53%
1096
37%
5813
3099
53%
2010
35%
5821
3211
55%
2032
35%
14571
7864
54%
5138
35%

Table 6: Federal Courts-Annual Trends in Frequency of Treating Source Remands, By
Remand Code (FY2009-11)

Remand
Reason

2009
Remands

Frequency
Percent

2010
Remands

Frequency
Percent

2011
Remands

Frequency
Percent

Total
Remands

Frequency
Percent

611

279

612

660

9%

394

22%

1303

7%

396

7%

1069

7%

22%

1303

22%

3266

22%

613

93

3%

186

3%

197

3%

476

3%

614

2

<1%

3

<1%

4

<1%

9

<1%

615

83

3%

164

3%

195

3%

442

3%

Total
Remands

2937

5813

5821

(Note: Percentages are computed within year.)

A-6

14571

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
4. Appeals Council Remands
Data on requests for review by the Appeals Council for 2009 – 2011 were obtained from the
Appeals Council case processing database. The data indicate that 24% of reviewed cases are
remanded each year.
Table 7: Appeals Council-Annual Remand Rates (FY2009-11)
Fiscal
Year
2009
2010
2011

Dispositions
Reviewed
89074
102076
127029

Remands
21797
24810
30044

Percent
Remand
24%
24%
24%

Data on reasons for Appeals Council remands were obtained from heat maps prepared by Ben
Gurga, ODAS/OESS/DMIA, 10/19/2011. For these tables, percentages are defined in terms
of the number of cited remand reasons. Because each remanded case may have multiple cited
reasons, these percentages will not necessarily match the percentage of remanded cases
where the reason was cited. Remands involving the treating source comprised 10% of the
total remands. The specific remand reasons are detailed below.
Table 8: Appeals Council-Reasons for Remand, By Category (FY2011)
Percent of Cited
Remand Reason
Remand Reasons
Adult Listings
2%
Child Listings
0%
Credibility Evaluation
5%
Dismissal/ Procedural
11%
Grid/ Vocational Expert
9%
Misc.
17%
OEE & RFC
35%
Past Relevant Work
5%
Severe/ Non-Severe
12%
SGA
2%
(Note: Remand categories are not mutually exclusive.)

A-7

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Table 8: Appeals Council-Reasons for Remand, By Category (FY2011) (Con’t)
Adult Listings
Child Listings
Credibility Evaluation
Dismissal/ Procedural
Grid/ Vocational Expert
Misc.
OEE & RFC
Past Relevant Work
Severe/ Non-Severe
SGA
0%

5%

10% 15% 20% 25% 30% 35% 40%

Remands involving the treating source comprised 10% of the total remand reasons.
Table 9: Appeals Council-Relative Frequency of OEE & RFC Remands, By
Subcategory (FY2009-11)
Remand Reason
2009
2010
2011
Treating Source
10.9%
10.5%
9.8%
Consultative Examiner
4.5%
4.5%
4.9%
Non-Examining Source
3.0%
3.0%
3.4%
Non-Medical Source
0.7%
0.9%
1.0%
Residual Functioning
Capacity
13.2%
14.7% 16.3%
Total OEE & RFC
32.4%
33.5% 35.4%
(Note: Remand categories are not mutually exclusive.)

Treating Source
Consultative Examiner
2009
Non-Examining Source

2010
2011

Non-Medical Source
Residual Functioning Capacity
0.0%

5.0%

10.0%

A-8

15.0%

20.0%

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
Table 10: Appeals Council-Relative Frequency of OEE & RFC Remands, By
Subcategory (FY2009-11)
Reason for Remand
Treating Source - Opinion not identified or discussed
Treating Source - Opinion rejected without adequate
articulation
Treating Source - Recontact necessary
Treating Source - Weight accorded opinion not specified
Total Remands Related to Treating Source
(Note: Remand categories are not mutually exclusive.)

2009
5.1%

2010
5.1%

2011
4.8%

3.2%
1.2%
1.5%
11%

3.2%
0.8%
1.4%
10.5%

3.0%
0.7%
1.3%
9.8%

Treating Source - Opinion Not
Identified Or Discussed
Treating Source - Opinion
Rejected Without Adequate
Articulation

2009
2010

Treating Source - Recontact
Necessary

2011

Treating Source - Weight
Accorded Opinion Not Specified
0.0% 1.0% 2.0% 3.0% 4.0% 5.0% 6.0%

5. Disposition Outcomes
Data on ALJ dispositions involving medical expert testimony were obtained from the SSA
case processing management system (“CPMS”) management information data tables.
Monthly data on disposition frequency and favorable rates were available across three years
(fiscal years 2009 - 2011). The data represented over two million dispositions issued by 1661
ALJs during that time period. We used this data to compare favorable rates for cases
involving medical expert testimony to cases without such testimony. An important limitation
of this analysis is that CPMS records information on the latest hearing held. If there were
multiple hearings, the data only indicated whether a medical expert was present at the most
recent hearing.
Dispositions were coded as fully favorable, partially favorable, unfavorable, or dismissed. A
separate Analysis of Variance was conducted each type of disposition outcome (fully
favorable, partially favorable, unfavorable, dismissal). This analysis compared systematic
difference associated with presence of a medical expert to the variability that would be
expected due to chance, where chance was operationalized as the variability across months
within each group.
A-9

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
The presence of a medical expert (“ME”) was associated with a higher fully favorable rate
(61% vs. 54%), F (1, 70) = 124.14, p <.0001, and a lower dismissal rate (4% vs. 16%), F (1,
70) = 2245.35, p = <.0001. The dismissal rate might reflect situations where a full hearing
was not conducted, which would explain why a ME was less likely to be present at hearings
that resulted in dismissal. To adjust for this possibility, the proportions were also using only
non-dismissal cases. Excluding dismissals, no differences were found between hearings with
and without a medical expert on fully favorable dispositions (63% with ME vs. 64% without
ME).
Table 11: Comparison of Dispositions With and Without a Medical Expert Present at
Hearing
1
0.9
0.8
0.7
0.6

Fully Favorable

0.5

Partially Favorable

0.4

Unfavorable

0.3

Dismiss

0.2
0.1
0
Not Present

Present

A-10

APPENDIX B: ANALYSIS OF SSA DATA (CON’T)
6. Federal Court Treating Source Remand Frequency by Circuit
SSA provided data noting the number of remands in FY 2011 that cited a remand reason. Up
to 3 reasons may be cited per remand. In order to compare the frequency percentage with
which treating source was cited as a remand reason among circuits, we compared the number
of times treating source was cited as a remand reason with the number of times any remand
reason was cited.
Table 12: Federal Courts-Frequency of Treating Source Remands, By Circuit (FY2011)
Number of Times
Treating Source Cited
65
267
119
159
70
151
75
189
437
192
166
1890

Circuit
1
2
3
4
5
6
7
8
9
10
11
TOTAL

Number of Times Any
Reason was Cited
428
888
567
752
313
573
418
814
2056
715
661
8185

Treating Source
Frequency Percent
15.19%
30.07%
20.99%
21.14%
22.36%
26.35%
17.94%
23.22%
21.25%
26.85%
25.11%
23.09%

Frequency of Treating Source-Based Remands, By Circuit
35.00%
30.00%

Percentage

25.00%
20.00%
15.00%
10.00%
5.00%
0.00%
1

2

3

4

5

6

7

Federal Circuit
Treating Source Frequency Percent

(Note: Vertical bars indicate one standard deviation.)
A-11

8

9

10

11

APPENDIX C: COMPARISON BETWEEN SELECTED PROVISIONS OF THE 1991 AND CURRENT
REGULATIONS RELATING TO THE TREATING PHYSICIAN RULE
The text below shows how the 1991 regulations compare to the current regulations. Text that
has been struck through was part of the 1991 iteration, but is not included today. Text in blue
and underlined has been added and exists today.
Relevant section: Definition of treating source
(20 C.F.R. §§ 404.1502, 416.902)

Treating source means your own physician, or psychologist, or other acceptable medical
source who provides you or who has provided you with medical treatment or evaluation and
who has or has had an ongoing treatment relationship with you. Generally we will consider
that you have an ongoing treatment relationship with a physician or psychologist an
acceptable medical source when the medical evidence establishes that you see or have seen,
the physician or psychologist the source with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required for your medical condition(s).
We may consider a physician or psychologist an acceptable medical source who has treated
or evaluated you only a few times or only after long intervals . . . to be your treating source if
the nature and frequency of the treatment or evaluation is typical for your condition(s). We
will not consider a physician or psychologist an acceptable medical source to be your treating
physician source if your relationship with the physician or psychologist source is not based
on your medical need for treatment or evaluation, but solely on your need to obtain a report in
support of your claim for disability. In such a case, we will consider the physician or
psychologist to be a consulting physician or psychologist acceptable medical source to be a
nontreating source.

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APPENDIX C: COMPARISON BETWEEN 1991 AND CURRENT REGULATIONS (CON’T)
Relevant section: Evaluating medical opinions about impairment(s) or disability
(20 C.F.R. §§ 404.1527(d), 416.927(d))

(d) (c) How we weigh medical opinions. . . . Unless we give a treating source’s opinion controlling
weight under paragraph (d)(2) (c)(2) of this section, we consider all of the following factors in
deciding the weight we give to any medical opinion. . . .
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations. If we find that a
treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
When we do not give the treating source’s opinion controlling weight, we apply the factors listed
below, as well as the factors in paragraphs (d)(3) through (5) of this section in paragraphs (c)(2)(i) and
(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through(c)(6) of this section in
determining the weight to give the opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s opinion.
(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a
treating source has treated you and the more times you have been seen by a treating source, the more
weight we will give to the source’s medical opinion. When the treating source has seen you a number
of times and long enough to have obtained a longitudinal picture of your impairment, we will give the
source’s opinion more weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source
has about your impairment(s) the more weight we will give to the source’s medical opinion. We will
look at the treatment the source has provided and at the kinds and extent of examinations and testing
the source has performed or ordered from specialists and independent laboratories. . . . When the
treating source has reasonable knowledge of your impairment(s), we will give the source’s opinion
more weight than we would give it if it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more weight we will give that opinion.
Furthermore, because nonexamining sources have no examining or treating relationship with you, the
weight we will give their opinions will depend on the degree to which they provide supporting
explanations for their opinions. We will evaluate the degree to which these opinions consider all of
the pertinent evidence in your claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more
weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion, we will also
consider any factors you or others bring to our attention, or of which we are aware, which tend to
support or contradict the opinion. For example, the amount of understanding of our disability
programs and their evidentiary requirements that an acceptable medical source has, regardless of the
source of that understanding, and the extent to which an acceptable medical source is familiar with the
other information in your case record are relevant factors that we will consider in deciding the weight
to give to a medical opinion.

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APPENDIX D: CIRCUIT COURT STANDARDS RELATING TO THE TREATING PHYSICIAN RULE
Standards for each circuit court are summarized based on an analysis of the caselaw.
Particularly useful cases are cited in parenthesis.
Circuit
Standard
First Conflict in evidence among treating, examining, and non-examining physicians is
for SSA, not the courts, to weigh. SSA bears the responsibility and has the freedom
to assign appropriate weight to both treating and non-treating sources. If SSA’s
determination is reasonable and supported by substantial evidence, according to 42
U.S.C. § 405(g), that determination will not be upset by the courts.
(Sources: Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218 (1st Cir. 1981); Rodrigues
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1 (1st Cir. 1987); Rivera v. Sec’y of Health &
Human Servs., 1996 U.S. App. LEXIS 16047 (1st Cir. 1996); Silva-Valentin v. Comm’r of Soc. Sec.
74 Fed. App’x. 73 (1st Cir. 2003); Delucia v. Barnhart, 173 Fed. App’x. 5 (1st Cir. 2006); Libby v.
Astrue, 473 Fed. App’x. 8 (1st Cir 2012)).

Second The court conducts a “plenary review of the administrative record to determine if
there is substantial evidence” to support SSA’s decision. SSA has “an affirmative
obligation to develop the administrative record,” and while the treating physician
rule usually requires SSA to give deference to a treating physician’s opinion, a
treating physician’s opinion is only accorded controlling weight when it is wellsupported and not inconsistent with substantial evidence in the record. SSA is
required to give “good reasons” for the weight it assigns the treating physician’s
opinion. The court will unhesitatingly remand a case when SSA fails to
“comprehensively set forth reasons for the weight assigned to a treating physician’s
opinion.” Substantial evidence for the weight ascribed treating physician opinions
consists of a comprehensive explanation for that weight.
(Sources: Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998); Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999);
Shaw v. Chater, 221 F.3d 126 (2d Cir. 2000); Halloran v. Barnhart, 362 F.3d 28 (2d Cir. 2004);
Micheli v. Astrue, 2012 U.S. App. LEXIS 222172 (2d Cir. 2012)).

Third

The court’s review of SSA’s decision is more deferential than a plenary review—
the court determines whether substantial evidence exists to support SSA’s decision,
regardless of whether the court would have made the same decision itself. When
the treating physician’s opinion is well-supported and not inconsistent, it will be
given controlling weight. But when medical evidence exists that contradicts the
treating physician’s opinion, that opinion may still be afforded substantial weight.
When SSA properly considers a treating physician’s evidence and explains its
reasons for the weight it assigns, the court will conclude that the agency’s decision
is supported by substantial evidence, but when the agency fails to provide adequate
explanation, the court will remand the case.
(Sources: Fargnoli v. Halter, 247 F.3d 34 (3d Cir. 2001); Brownawell v. Comm’r of Soc. Sec., 554
F.3d 352 (3d Cir. 2008); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198 (3d Cir. 2008); Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356 (3d Cir. 2011)).

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APPENDIX D: CIRCUIT COURT STANDARDS (CON’T)
Circuit
Standard
Fourth The court is vested with responsibility to determine whether the agency’s finding is
supported by substantial evidence. Substantial evidence means that there must be
adequate evidence to support a reasonable conclusion. The court neither re-weighs
conflicting evidence nor substitutes its judgment for that of the agency. In the
treating source rule context, SSA evaluates every medical opinion, but decides the
weight to assign a particular opinion according to the relationship between the
physician and his or her patient. The treating source’s opinion is given controlling
weight when it is well-supported and not contradicted by other substantial evidence
in the record. However, when it is not well-supported or is contradicted, the opinion
is given significantly less weight. In such instances, SSA has discretion “to give
less weight to the testimony of a treating physician in the face of persuasive contrary
evidence.”
(Sources: Craig v. Chater, 76 F.3d 585 (4th Cir. 1996); Mastro v. Apfel, 270 F.3d 171 (4th Cir.
2001); Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005); Thompson v. Astrue, 442 Fed. App’x. 804
(4th Cir. 2011)).

Fifth

The Social Security Act empowers SSA both with determining whether disability
exists and how to analyze a treating physician’s opinions. Courts lack the power to
re-weigh the evidence or substitute their own judgment for that of SSA. Rather, the
courts review SSA’s determinations according to the substantial evidence standard,
which is “more than a mere scintilla, but less than a preponderance.” While treating
source opinions are usually afforded great weight, they are not conclusive. SSA
may assign less, little, or no weight to those opinions, if it shows good cause—as
recognized by case law—to do so.
(Sources: Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994); Paul v. Shalala, 29 F.3d 208 (5th Cir.
1994); Leggett v. Chater, 67 F.3d 558 (5th Cir. 1995); Perez v. Barnhart, 415 F.3d 457 (5th Cir.
2005); Foster v. Astrue, 410 Fed. App’x. 831 (5th Cir. 2011)).

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APPENDIX D: CIRCUIT COURT STANDARDS (CON’T)
Circuit
Sixth

Standard
The court is limited in its review of SSA decisions. It reviews only whether SSA
“applied the correct legal standard and made findings supported by substantial
evidence in the record.” Substantial evidence is such evidence that “a reasonable
mind might accept as adequate to support a conclusion.” In the treating source rule
context, SSA must give a treating source’s opinion controlling weight if it is wellsupported and not inconsistent with other substantial evidence in the record. If
SSA does not give it controlling weight, the agency must give “good reasons”
according to several regulatory factors and supported by evidence in the record.
Providing anything less than good reasons—such as a mere summary dismissal of
the treating source’s opinion, even if SSA’s decision is ultimately justified based on
the record—in a sufficiently clear way “denotes a lack of substantial evidence” and
will almost always result in remand to the agency. The only way remand will not
result is if the court determines the agency made a harmless error, as determined
and developed by case law.
(Sources: Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004); Allen v. Comm’r of Soc.
Sec., 541 F.3d 646 (6th Cir. 2008); White v. Comm’r of Soc. Sec., 572 F.3d 272 (6th Cir. 2009);
Cole v. Astrue, 661 F.3d 931, 937-40 (6th Cir. 2011); Helm v. Comm’r of SSA, 405 Fed. App’x.
997 (6th Cir. 2011); Stroud v. Comm’r of Soc. Sec., 2012 FED App. 1156N (6th Cir. 2012);
Johnson-Hunt v. Comm’r of Soc. Sec., 2012 FED App. 01010N (6th Cir. 2012)).

Seventh The court reviews SSA decisions deferentially, upholding them as long as they
apply the correct legal standard and are supported by substantial evidence, which is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” SSA must give a treating source’s opinion controlling weight if it is
supported by “medically acceptable clinical and laboratory diagnostic techniques”
and is “not inconsistent with substantial evidence in the record.” If the opinion
fails to meet these two criteria, SSA may still accept it, but if the agency declines to
give such opinion controlling weight, it “must provide a sound explanation for the
rejection;” SSA “must provide an account of what value the treating physician’s
opinion merits.” The court will remand the case if the agency’s decision lacks
adequate explanation.
(Sources: Hofslien v. Barnhart, 439 F.3d 375 (7th Cir. 2006); Schmidt v. Astrue, 496 F.3d 833 (7th
Cir. 2007); Ketelboeter v. Astrue, 550 F.3d 620 (7th Cir. 2008); Schaaf v. Astrue, 602 F.3d 869 (7th
Cir. 2010); Campbell v. Astrue, 627 F.3d 299 (7th Cir. 2010); Jelinek v. Astrue, 662 F.3d 805 (7th
Cir. 2011)).

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APPENDIX D: CIRCUIT COURT STANDARDS (CON’T)
Circuit
Standard
Eighth When the court reviews SSA decisions, it decides whether the decisions are
supported by substantial evidence, and considers evidence that both supports and
detracts from SSA’s findings. Substantial evidence is less than a preponderance, but
enough that a reasonable mind would accept the conclusion. The court might not
agree with the outcome, but may only reverse SSA’s decision if the record lacks
substantial evidence to support it. The treating source’s opinion is given special
deference and is usually entitled to “great weight” if it is well-supported and not
inconsistent with the record’s other substantial evidence. The opinion, however,
does not automatically control, “since the record must be evaluated as a whole.”
SSA may discount or disregard the opinion “where other medical assessments” are
better supported or where the opinion itself is inconsistent, and therefore undermines
its own credibility. In any event, SSA must consider a treating source’s opinion and
give good reasons for the weight it accords such opinion—whether that weight is
substantial or minimal.
(Sources: Bentley v. Shalala, 52 F.3d 784 (8th Cir. 1995); Cruze v. Chater, 85 F.3d 1320 (8th Cir.
1996); Rogers v. Chater, 118 F.3d 600 (8th Cir. 1997); Rankin v. Apfel, 195 F.3d 427 (8th Cir.
1999); Prosch v. Apfel, 201 F.3d 110 (8th Cir. 2000); Hogan v. Apfel, 239 F.3d 958 (8th Cir. 2001);
Vossen v. Astrue, 612 F.3d 1011 (8th Cir. 2010); Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010);
Anderson v. Astrue, 2012 U.S. App. LEXIS 22025 (8th Cir. 2012)).

Ninth

SSA’s decision may only be reversed if it is based on legal error or is not supported
by substantial evidence in the record. Substantial evidence is more than a mere
scintilla, but less than a preponderance and the court may not substitute its judgment
for that of SSA. The court recognizes a hierarchy of opinions: treating physician,
examining physician, and non-examining physician. Generally, more weight is
given to the opinion of a treating physician than that of a non-treating physician.
Indeed, if the treating physician’s opinion is well-supported and not inconsistent, it
is accorded controlling weight. When a treating physician’s opinion is not
contradicted, it may only be rejected for “clear and convincing” reasons. Clear and
convincing reasons are also required to reject a treating physician’s conclusions.
Even if a treating physician’s opinion is contradicted, SSA may only reject that
opinion if it provides “specific and legitimate reasons supported by substantial
evidence in the record for so doing.” Not only does the contradictory opinion of a
non-examining physician by itself not constitute such substantial evidence, but the
reasons must be “sufficiently specific to make clear to any subsequent reviewers the
weight the [agency] gave to the treating source’s opinion and the reasons for that
weight.”
(Sources: Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989); Rodriguez v. Bowen, 876 F.2d 759
(9th Cir. 1989); Lester v. Chater, 81 F.3d 821 (9th Cir. 1995); Smolen v. Cater, 80 F.3d 1273 (9th
Cir. 1996); Edlund v. Massanari, 2001 U.S. App. LEXIS 17960 (9th Cir. 2001); Thomas v. Barnhart,
278 F.3d 947 (9th Cir. 2002); Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003); Flores v. Comm’r
of Soc. Sec., 237 Fed. App’x. 251 (9th Cir. 2007)).

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APPENDIX D: CIRCUIT COURT STANDARDS (CON’T)
Circuit
Tenth

Standard
The court deferentially reviews SSA’s decision to determine whether it is
supported by substantial evidence and is free from legal error. While the court
neither re-weighs nor substitutes its judgment for that of the agency, it
“meticulously examine[s] the record” to ensure that SSA has sufficient basis for
deciding the way it did. In the treating physician rule context, SSA will usually
give more weight to treating sources than non-treating sources. The agency must
first determine whether the treating physician’s opinion qualifies for controlling
weight. It qualifies for controlling weight only when it is well-supported and not
inconsistent with other substantial evidence in the record. When SSA does not
give a treating physician’s opinion controlling weight, it must show good cause for
its decision and specifically and legitimately articulate the weight given to the
opinion according to all appropriate regulatory factors. Failure to provide good
reasons will inhibit a court’s ability to review the agency’s decision and will result
in remand.
(Sources: Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987); Goatcher v. U.S. Dep’t of Health &
Human Servs., 52 F.3d 288 (10th Cir. 1995); Miller v. Chater, 99 F.3d 972 (10th Cir. 1996);
Drapeau v. Massanari, 10 Fed. App’x. 657 (10th Cir. 2001); Doyal v. Barnhart, 331 F.3d 758 (10th
Cir. 2003); Watkins v. Barnhart, 350 F.3d 1297 (10th Cir. 2003); Langley v. Barnhart, 373 F.3d
1116 (10th Cir. 2004); Kilpatrick v. Astrue, 2012 U.S. App. LEXIS 24049 (10th Cir. 2012)).

Eleventh The court reviews SSA’s evidentiary findings according to the substantial
evidence standard and its legal findings de novo. The substantial evidence
standard requires that the agency’s “decision be based on evidence that a
reasonable mind might accept as adequate to support a conclusion.” The court
will not re-weigh evidence or make credibility determinations. In the treating
physician context, according both to case law and agency regulations, SSA must
give the treating physician’s opinion “substantial or considerable weight unless
good cause is shown to the contrary.” On issues reserved to the agency, however,
SSA does not have to give the opinion controlling weight. Good causes for giving
the treating physician’s opinion less weight include when it is not supported by
evidence, the evidence supported a contrary finding, or the opinion is itself
conclusory or inconsistent. If SSA declines to give the treating physician opinion
controlling weight, it must clearly articulate its reasons for doing so. If the agency
articulates specific and particular reasons, failure to give the treating physician’s
opinion controlling weight will not result in a reversible error, so long as its
reasons are supported by substantial evidence.
(Sources: MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Phillips v. Barnhart, 357 F.3d 1232 (11th Cir. 2003); Moore v.
Barnhart, 405 F.3d 1208 (11th Cir. 2005); Gainous v. Astrue, 402 Fed. App’x. 472 (11th Cir.
2010); Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011)).

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APPENDIX E: LETTER FROM NATIONAL ORGANIZATION OF SOCIAL SECURITY CLAIMANTS’
REPRESENTATIVES

NATIONAL ORGANIZATION OF
SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES
(NOSSCR)
560 Sylvan Avenue • Englewood Cliffs, NJ 07632
Telephone: (201) 567- 4228 • Fax: (201) 567-1542 • email: nosscr@att.net

Executive Director
Nancy G. Shor
December 19, 2012
Amber Williams
ACUS Attorney Advisor
Administrative Conference of the United States
1120 20th St., NW Suite 706 South
Washington, DC 20036
Re: Comments on the ACUS study of the role of courts in reviewing SSA
disability decisions
Dear Ms. Williams:
Thank you for the opportunity to submit comments on the ACUS study of the
role of courts in reviewing SSA disability decisions, specifically, as it relates to
the “treating physician rule.”
To provide background about our organization, NOSSCR was founded in 1979
and is a professional association of attorneys and other advocates who represent
individuals seeking Social Security disability and Supplemental Security Income
(SSI) disability benefits. NOSSCR members represent these individuals at all
Social Security Administration (SSA) administrative levels and in federal court.
We are a national organization with a current membership of more than 4,000
members from the private and public sectors and are committed to the highest
quality legal representation for claimants.
Our comments focus on the impact of the study on the millions of claimants and
beneficiaries with severe disabilities for whom Title II and SSI cash benefits,
along with the related Medicaid and Medicare benefits, are the means of
survival.
1. What is NOSSCR’s position on SSA’s current regulations and/or
policies regarding the treating physician rule?
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APPENDIX E: LETTER FROM NOSSCR (CON’T)
We believe that the current regulations and policies provide detailed guidance
for adjudicators and the public.
Prior to 1991, SSA had failed to promulgate comprehensive rules for weighing
medical evidence in disability claims. As a result, the courts stepped in to fill the
void. The circuit courts established an extensive collection of precedent in this
area. The “treating physician rule” existed in every circuit and provided fairly
similar guidance. Generally, the opinion of a treating physician was to be given
more weight than that of a consulting or non-examining physician. While some
variations existed from circuit to circuit, the biggest split at the time was
between the circuits and SSA.
Finally, in 1991, SSA moved to address this problem when it published final
rules describing the weight to be given all medical evidence, including reports
from treating physicians and consultative examinations.1 The extensive circuit
case law played an important role in development of the regulations. Even SSA
stated that it had “been guided” by basic principles upon which the majority of
circuit courts generally agreed. These principles are:
1. “[T]reating source evidence tends to have a special intrinsic value by
virtue of the treating source’s relationship with the claimant.”
2. “[I]f the Secretary [now Commissioner] decides to reject such an opinion,
he should provide the claimant with good reasons for doing so.”2
Since 1991, the courts have applied and upheld the validity of the regulations,
even when they differed from pre-1991 circuit precedent. In the Second Circuit,
which arguably had one of the most liberal treating physician rules, the court
upheld the validity of the 1991 medical evidence regulations.3
2. What suggestions does NOSSCR have, if any, for improving the
current regulations and/or policies regarding the treating physician
rule?
Under the SSA regulations, only an “acceptable medical source” can establish the
existence of a “medically determinable impairment.”4 SSA considers evidence
from “acceptable medical sources” to be “medical opinions” subject to the
“treating source” rule.5
1 56 Fed. Reg. 36932 (Aug. 1, 1991).
2 Id. at 36934.
3 See Schisler v. Sullivan, 3 F.3d 563 (2nd Cir. 1993).
4

20 C.F.R. §§ 404.1513(a) and 416.913(a).

5

20 C.F.R. §§ 404.1527(d) and 416.927(d); 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2).

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APPENDIX E: LETTER FROM NOSSCR (CON’T)
SSA should expand the list of “acceptable medical sources” to include nurse
practitioners, physician assistants, and clinical social workers, who are all
licensed and credentialed under state law. Delays in the disability claims process
often arise when SSA requires a consultative examination to confirm the
diagnosis made by a nurse practitioner, physician assistant, or licensed clinical
social worker.
Millions of Americans now rely on these licensed practitioners as their primary
providers of physical and mental health care. Based on current trends, these
health professionals will become an increasing part of the nation’s healthcare
workforce – a role that the federal government is committed to promoting.
Because these professionals are licensed by states, expanding the list of
acceptable medical sources to include them protects the integrity of the disability
programs. Most importantly, it will streamline the process, ensuring that eligible
individuals access benefits in a timely manner.
A recent report by the National Law Center on Homelessness & Poverty makes
the argument for expanding the types of health care workers who can be
acceptable medical sources, especially for claimants who are homeless. The
report makes recommendations for how SSA can expand the categories of
treating health care professionals who are considered acceptable medical
sources.6
3. What legal or practical concerns does NOSSCR have, if any,
regarding the treating physician rule as applied within the SSA
adjudicatory process and as reviewed by the federal courts?
The current regulations require adjudicators to “evaluate every medical opinion
we [i. e., SSA] receive” when determining the weight to give these opinions,
including those from treating sources.7 The regulations also require adjudicators
to “consider all of the … factors [in the regulations] in deciding the weight we
give to any medical opinion”8 and to “make findings about what the evidence
shows.”9 Consistent with the second guiding principle for the regulations, the

Improving Access: Expanding Acceptable Medical Sources for the Social
Security Administration Disability Determination Process (May 2012)(“NLCHP
Report”). Available at http://www.nlchp.org/content/pubs/5.14.12% 20Improving
%20Access,%20FINAL.pdf.
7 20 C.F.R. §§ 404.1527(d) and 416.927(d).
8 Id.
920 C.F.R. §§ 404.1527(c) and 416.927(c).
6

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APPENDIX E: LETTER FROM NOSSCR (CON’T)
courts have required adjudicators to provide a rationale, explaining how the
factors were applied to determine the weight given to medical opinions and to
provide valid reasons for discounting or rejecting the opinions of treating
sources.
We review hundreds of district court and circuit court cases involving Social
Security and SSI disability claims every year, with many decisions resulting in
court-ordered remands. The most frequent reason for the remands is the ALJ’s
failure to articulate supported and valid reasons for rejecting or discounting
medical evidence from treating sources.
SSA’s regulations require that “[w]e will always give good reasons in our notice
of determination or decision for the weight we give your treating source’s
opinion.”10 The failure to provide a rationale leaves the court unable to
adequately review the record since the court cannot determine how the ALJ
weighed the evidence or why the ALJ may have rejected an opinion. As a result,
the court has no choice but to remand the case for further development of the
record.
4. What legal or practical concerns would NOSSCR have, if any, if SSA
weighed all evidence under the same standards, regardless of the
source of the evidence?
Unless a treating source opinion is entitled to controlling weight, SSA’s
regulations already provide that all medical opinions are evaluated under the
same factors.11 These factors are: (1) treatment relationship, including length
of relationship, frequency of examination, and nature and extent of treatment
relationship; (2) supportability; (3) consistency; and (4) specialization.12
It should be noted that evidence from a treating source is not automatically
accorded “controlling weight.” Under the regulations, a treating source’s opinion
is given controlling weight only if: (1) it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques”; and (2) it is “not
inconsistent with the other substantial evidence in your case record.” 13 If a
treating source opinion is not given controlling weight, SSA will apply the other
factors listed above.14

20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2).
20 C.F.R. §§ 404.1527(d) and 416.927(d).
12
20 C.F.R. §§ 404.1527(d)(2)–(d)(6) and 416.927(d)(2)–(d)(6).
13
20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2).
14
Id.
10
11

A-22

APPENDIX E: LETTER FROM NOSSCR (CON’T)
5. Does NOSSCR believe that the changes in the health care system
over the past twenty years since the regulations were originally
adopted affect the basis or efficacy of the treating physician rule
today? If so, why? If not, why not?
As discussed above, we recommend that SSA expand the definition of “acceptable
medical source” to include a broader range of primary treating sources,
specifically nurse practitioners, physician assistants, and clinical social workers,
who are all licensed and credentialed under state law.
Non-physician health care providers are increasingly the primary care providers
for many individuals. As a result, these treating medical providers will become
an important source of medical information about their patients. The federal
government has recognized the importance of these medical providers as part of
the network of health providers. As noted by the National Law Center on
Homelessness & Poverty in its report:
Finally, expanding the list of acceptable medical sources to include these
professionals protects the integrity of the SSDI and SSI programs. Nurse
practitioners, physician assistants, and licensed clinical social workers are all
highly trained professionals who provide excellent primary physical and
mental health care. Practice and licensing standards are generally consistent
across states, so SSA can be assured that all nurse practitioners, physician
assistants, and licensed clinical social workers are held to appropriately high
standards.15
*

*

*

Thank you for asking us to provide these comments.
Very truly yours,
Nancy G. Shor
Executive Director, NOSSCR
Ethel Zelenske
Director of Government Affairs, NOSSCR

15 NLCHP Report at 15.

A-23

APPENDIX F: LETTER FROM NATIONAL ASSOCIATION OF DISABILITY REPRESENTATIVES

December 28, 2012
Administrative Conference of the United States
Amber Williams,
Attorney Advisor
1120 20th Street NW, Suite 706 South
Washington, DC 20036
Dear Ms. Williams:
Thank you for the opportunity to share our suggestions and concerns with the ACUS.
responses to your questions are below.

Our

1. What is NADR’s position on SSA’s current regulations and/or policies regarding the treating
physician rule?
SSA defines a “treating source” at 20 CFR 404.1502 (2012):
“Treating source means your own physician, psychologist, or other acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment
relationship with an acceptable medical source when the medical evidence establishes that you see, or
have seen, the source with a frequency consistent with accepted medical practice for the type of treatment
and/or evaluation required for your medical condition(s). We may consider an acceptable medical source
who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be
your treating source if the nature and frequency of the treatment or evaluation is typical for your
condition(s). We will not consider an acceptable medical source to be your treating source if your
relationship with the source is not based on your medical need for treatment or evaluation, but solely on
your need to obtain a report in support of your claim for disability. In such a case, we will consider the
acceptable medical source to be a nontreating source.”

SSA explains how opinion evidence is evaluated at 20 CFR 404.1527 (2012):
http://ssa.gov/OP_Home/cfr20/404/404-1527.htm

A-24

APPENDIX F: LETTER FROM NADR (CON’T)
The length of the treating relationship, frequency of examination, nature and extent of the treatment
relationship, supportability, consistency, specialization, and other factors are supposed to be
considered, when SSA is deciding how much weight to give to opinion evidence. Generally,
treating source’s opinions are entitled to great, if not controlling weight, as long as they are not
inconsistent with the record as a whole (see also Policy Interpretation Ruling SSR 96-2p, re:
Giving

Controlling

Weight

to

Treating

Source

Medical

Opinions:

http://www.ssa.gov/OP_Home/rulings/di/01/SSR9602-di-01.html and SSR 96-5p re: Medical Source Opinions on Issues Reserved to the Commissioner:
http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-05-di-01.html).

These Regulations are simple yet concise, and the Rulings give excellent guidance. NADR supports
this approach, as representatives understand that no source is in a better position to know the nature
and severity of a claimant’s impairments and their functional restrictions than the treating physician.
It is important that adjudicators at the state agencies receive better training and encouragement to
apply these Regulations and Rulings. Treating physicians’ opinions – especially regarding the
claimants’ functioning – should routinely be requested at the initial and reconsideration levels, and
given the proper weighting per the Regulations. Better training of adjudicators and enforcement of
the current Regulations and Rulings would ensure that accurate decisions are made as early in the
process as possible, benefitting vulnerable claimants and saving SSA resources that are wasted by
unnecessary appeals. Administrative Law Judges (ALJs) and staff attorneys, on the whole, seem to
understand and apply the Regulations and Rulings more often than adjudicators – which is a
principle reason why so many denials are reversed by ALJs. Another important factor is that the
record is often incomplete at the initial and reconsideration levels, yet with representative
involvement (particularly at the hearing level), better and more complete evidence (most often from
the treating physicians) enables the ALJs to make more accurate decisions.
SSA issued a Notice of Proposed Rulemaking (NPRM) re: “How We Collect and Consider Evidence
of

Disability”

(76

Fed.

Reg.

20282,

4/12/11).

Here

is

a

link

to

the

text:

http://www.gpo.gov/fdsys/pkg/FR-2011-04-12/html/2011-8388.htm
NADR submitted comments to this NPRM on 6/10/11; a copy of our submitted comments is attached.
SSA’s Regulations and policies require adjudicators and ALJs to recontact the treating physician
when additional information or clarification is needed, before ordering a consultative examination
(see 20 CFR 404.1512(d) and (e)(2012) and HALLEX I-2-5-18 to 20 and II-4-1-2). This requirement
should be reinforced during the training process.

A-25

APPENDIX F: LETTER FROM NADR (CON’T)
2. What suggestions does NADR have, if any, for improving the current regulations and/or policies
regarding the treating physician rule?

NADR’s position is that the majority of existing Regulations and Rulings are sufficient; there may be
a need for better training to assure that adjudicators and ALJs are aware of the procedures in place,
and follow them accordingly.

3.

What legal or practical concerns does NADR have, if any, regarding the treating physician

rule as applied within the SSA adjudicatory process and as reviewed by the federal courts?

We are concerned that despite the fact that SSRs 96-2p and 96-5p were issued more than 16
years ago, to date they are not applied consistently.

4.

What legal or practical concerns would NADR have, if any, if SSA weighed all evidence

under the same standards, regardless of the source of the evidence?

NADR would strongly oppose a change in existing policy to allow SSA to weigh all evidence under
the same standards. SSA’s Regulations and Rulings make it clear that there is a hierarchy of medical
sources that should be followed, depending on numerous factors, including specialization, length of
treating relationship, supportability and consistency with the evidence.

NADR supports this

approach as logical and pragmatic, but with the understanding that the world of medicine has changed
over the last two decades (see our response to number 5). There is simply no way that a consultative
examination – representing a single, often very brief “snapshot in time” - should have the same
weight as medical records and opinions from a treating source that has known the claimant for years.
There is even less support for the state agency reviewing physicians’ opinions, given that they never
examine the claimants, have incomplete records, and are under tremendous production pressures
that lead to insufficient analysis.

5.

Does NADR believe that the changes in the health care system over the past twenty years
since the regulations were originally adopted affect the basis or efficacy of the treating
physician rule today? If so, why? If not, why not?

A-26

APPENDIX F: LETTER FROM NADR (CON’T)
The world of medicine has changed, and continues to change. Per 20 CFR 404.1513(a)(2012), SSA
currently defines “Acceptable Medical Sources” as:
“(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. Included are school psychologists, or other licensed or certified
individuals with other titles who perform the same function as a school psychologist in a school setting,
for purposes of establishing mental retardation, learning disabilities, and borderline intellectual
functioning only;
(3) Licensed optometrists, for purposes of establishing visual disorders only (except, in the U.S. Virgin
Islands, licensed optometrists, for the measurement of visual acuity and visual fields only);
(4) Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only,
depending on whether the State in which the podiatrist practices permits the practice of podiatry on the
foot only, or the foot and ankle; and
(5) Qualified speech-language pathologists, for purposes of establishing speech or language impairments
only. For this source, “qualified” means that the speech-language pathologist must be licensed by the State
professional licensing agency, or be fully certified by the State education agency in the State in which he
or she practices, or hold a Certificate of Clinical Competence from the American Speech-LanguageHearing Association.”

Increased involvement of Physicians’ Assistants, Nurse Practitioners, Physical Therapists, and social
workers in patient care is a reality with which SSA has yet to contend. While SSR 06-3p gives
guidance on accepting medical opinions from sources other than those that are deemed “acceptable”
by SSA, it is often the case in current adjudication (especially at the initial and reconsideration levels)
that medical evidence from years of treatment with a PA, NP or LCSW is swept aside, to be replaced
by the opinion of a consulting MD who sees the patient for 30 minutes or less…solely because the
primary treating source is not deemed “acceptable.” SSA should consider revising the Regulations to
better reflect today’s treatment practices. Here is a link to SSR 06-3p:
http://www.ssa.gov/OP_Home/rulings/di/01/SSR2006-03-di-01.html
The move towards electronic medical records has already demonstrated the potential to dramatically
reduce SSA’s adjudicative processing times, while ensuring a more complete medical record is
obtained. SSA should incorporate functional questionnaires (“medical source statements” and
“interrogatories” commonly used by representatives) to better obtain the clinical information and
restrictions from the treating physicians earlier in the process.
We appreciate the opportunity to share our members’ concerns and suggestions with you.
Regards,

Trisha Cardillo, ADR
President of NADR
Attachment: NADR Comments re: Docket No. SSA-2010-0044 [76 FR 20282 (April 12, 2011)]

A-27

APPENDIX F: LETTER FROM NADR (CON’T)

National Association of Disability Representatives

June 10, 2011
Board of Directors
2010-2011

_______________________
President
Scot Whitaker
Jackson, TN
Vice President
Trisha Cardillo
Lawrenceville, GA
Secretary
Court Hogan
Statesville, NC
Treasurer
Robert McDowell
Elizabethtown, KY
Directors-at-Large
John Bishop
Albuquerque, NM
Frederick Daley, Jr.
Chicago, IL
Sandy Fambrough
Dallas, TX
Steve Skinner
Redding, CA

NADR National Office

Office of Regulations
Social Security Administration
137 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235-6401
Submitted on www.regulations.gov
RE: Docket No. SSA-2010-0044
Dear Sir or Madam:
On behalf of the more than 600 members of the National
Association of Disability Representatives (NADR), we write in
reply to the Social Security Administration's (SSA) request for
comments [76 Fed. Reg. 20282 (April 12, 2011)] on its notice of
proposed rulemaking on "How We Collect and Consider Evidence
of Disability." NADR is a professional organization comprised of
non-attorneys and attorneys who assist people in applying for
disability income assistance from the Social Security
Administration. We appreciate this opportunity to comment on the
proposed rule.

_______________________
Administrators
Eva Sirman
202-822-2155
eva@nadr.org
Jason Sirman
202-822-2155
jason@nadr.org
NADR
PO Box 96503 #30550
Washington, DC 20090-6503
Phone: (202) 822-2155
Fax (972) 245-6701
Web Site: www.nadr.org

In general, we believe that the editorial corrections and nonsubstantive changes proposed in the rule will provide more clarity
and consistency. We agree that SSA's efforts to dramatically
improve the evidence-collection process through the increased use
of Health Information Technology will speed the review of
evidence, reduce the need to recontact treating sources, and reduce
the number of Consultative Examinations (CE) needed. However,
we strongly disagree with SSA's proposal to eliminate the
requirement that it recontact a claimant's medical source(s) when it
needs to resolve an inconsistency or insufficiency in the evidence
provided. We believe -- and Social Security's own rulings and
regulations recognize -- that the treating physician is the bestinformed and most-likely source of information about a claimant's
medical condition. Rather than abandoning the effort to obtain

A-28

APPENDIX F: LETTER FROM NADR (CON’T)
information from the treating source, SSA should explore ways to make the process
by which it requests information from the treating physician more efficient and
effective when it attempts to fill gaps in a claimant's medical record.
Following are our comments on specific sections of the proposed rule.
Sec. 404.1519a When we will purchase a consultative examination and how
we will use it.
The proposed rule would eliminate the current requirement that SSA first
recontact a claimant's treating physician or psychologist or other medical source
when it determines that the evidence received from those sources is inadequate to
determine whether the claimant is disabled. In the explanation of changes, SSA
asserts that "[t]here are situations where we need the flexibility to determine how
best to resolve inconsistencies and insufficiencies in the evidence," and that the
proposed change would "shorten case processing time and conserve resources" in
some situations.
SSA provides two examples to demonstrate the need for the change. The first is
"when your medical source(s) does not specialize in the area of the impairment
you have alleged;" the second is when "issues revealed in the medical evidence
are better clarified by someone other than your medical source(s)."
Existing regulations give SSA the flexibility to determine how best to resolve
inconsistencies and insufficiencies in the evidence. Section 404.1512(e)(2) states:
"We may not seek additional evidence or clarification from a medical source when
we know from past experience that the source either cannot or will not provide the
necessary findings."
Further, Section 404.1512(f) states: "Generally, we will not request a consultative
examination until we have made every reasonable effort to obtain evidence from
your own medical sources. However, in some instances, such as when a source is
known to be unable to provide certain tests or procedures or is known to be
nonproductive or uncooperative, we may order a consultative examination while
awaiting receipt of medical source evidence."
The flexibility to order a consultative examination without first recontacting
medical sources is contained in the current regulations. Therefore, the proposed
change is unnecessary.
Further, we are concerned that, while SSA indicates that it "expect[s] that our
adjudicators would continue to recontact your medical source(s) first when we
believe such recontact is the most effective and efficient way to resolve an
inconsistency or insufficiency", the proposed change will instead result in
significantly more CEs being ordered at the taxpayer's expense, when a clear,
specific request to the treating source would result in more informed and
accurate information being provided faster and without the added expense of
ordering a CE. NADR believes that more diligent efforts to obtain specific

A-29

APPENDIX F: LETTER FROM NADR (CON’T)
information from treating sources will result in a clearer picture of a claimant's
longitudinal treatment, as opposed to a one-time "snapshot" produced by a CE.
We are concerned that eliminating the requirement that SSA recontact a
claimant's medical sources would not result in greater efficiency or effectiveness.
Medical evidence from treating providers is key to ensuring that eligible
claimants are awarded benefits at the initial level when the one-time evaluation
made during a consultative examination would not provide the evidence necessary
to make a favorable determination. If more cases are decided at the initial level
without evidence from the treating providers, ALJs will bear a greater burden of
completing the evidentiary record at the hearing level.
Rather than eliminating the requirement that SSA recontact the treating physician
or other medical source -- the best-informed and most-likely source of
information about a claimant's medical condition -- NADR proposes that SSA
develop better processes for requesting medical records. Providing clear
questions to the treating physician that are targeted to SSA's disability criteria
will make it easier and less time-consuming for that medical source to provide
specific answers that can fill in the blanks when the evidence is either
inconclusive or insufficient to make a determination.
For example, SSA might develop templates of condition-specific questions to
send to treating physicians in addition to blanket requests for medical records.
This would help SSA obtain more accurate and better information from the
treating physician more expediently. Also, taking steps to assure that the request
actually reaches the treating physician rather than languishing in the medicalrecords office will greatly improve the process. A direct phone call to the
treating physician is often the most expedient way to fill gaps in the medical
record. Better training for DDS staff on these procedures also will help to assure
that the DDS is building a record that is more in line with the process employed
by ALJs, thus improving the prospects of getting the right decision sooner in the
process and reducing the need to push such cases to the hearing level.
NADR recommends that SSA be required to document at least three attempts to
contact the medical source before ordering a CE. For claimants who have
representatives, SSA should make it standard operating procedure to send a copy
of the requested additional information to the representative at the time it is
requested of the treating physician. Representatives are willing and able to assist
SSA in getting the information it needs. Such coordination will reduce the
administrative burden on DDS offices as well.
Improving SSA's process for recontacting treating physicians will be much more
effective and efficient- and less costly- than ordering CEs in providing SSA with
the evidence it needs to make an informed decision.

A-30

APPENDIX F: LETTER FROM NADR (CON’T)
Sec. 404.1520b How we consider evidence
When SSA does order a CE, NADR recommends that the following steps be
taken to assure that the examination produces information that is as accurate and
informed as possible:
•

•
•

•

•

Before the exam, SSA should provide the claimant and, if there is one,
his/her representative a list of what medical information will be sent to
the CE provider.
The claimant and representative should be given the opportunity to
submit interrogatories to the examiner before the exam.
Unless a fully favorable decision can be made based on the CE, the
results of the CE should be provided to the representative for comment
before SSA makes a decision, and the treating physicians should have the
right to raise objections or comment on the CE report.
As happens at the hearing level, SSA should be required to proffer a CE
report and provide the claimant and representative an opportunity to
comment and/or object.
The results of the CE should only be considered supportive and never
considered more unless it is the only medical documentation.

Conclusion
We urge SSA to retain the current requirement that SSA recontact a claimant's
treating physician, psychologist or other medical source when evidence is
insufficient or inconclusive. Further, we believe that better training for DDS staff
about process unification will result in better record building at the DDS level,
and therefore fewer appeals. Finally, when CEs are requested, claimants,
representatives and treating physicians should have the opportunity to both
provide questions to the examiner and review and comment on the CE report.
NADR appreciates the opportunity to share the views of our members with SSA.
Thank you for consideration of our comments.

Scot E. Whitaker
President

Art Kaufman
Legislative Chair

A-31

APPENDIX G: PRIVATE HEALTH PLAN ENROLLMENT (1988 – 2012)
Distribution of Health Plan Enrollment for Covered Workers (by Plan Type), 1988 – 2012

(Source: Kaiser Family Foundation/Health Research & Educational Trust, 2012 Employer Benefits Health Survey, Exhibit 5.1 (2012), available at
http://ehbs.kff.org/pdf/2012/8345.pdf)

A-32

APPENDIX H: FEDERAL JUDICIAL APPLICATION OF SSR-06-03P (2009 – 12)

To empirically assess the impact of SSR 06-03p on SSA disability adjudications, staff
from the Administrative Conference reviewed the outcomes of all federal district court cases
published in the LEXIS database from 2009 to 2012 that involved (a) application of this (b)
to opinions of other evidence offered by nurse practitioners, physician assistants, or licensed
clinical social workers. The database of cases was compiled by using the following search
string:
"SSR 06-03p" and "other source" and ("nurse practitioner" or nurse or
"physician's assistant" or "physician assistant" or "social worker" or LCSW or
MSW or NP) and (remand! or reverse! or affirm! or vacate! or deny or denied
or grant! or award! or recommend!) and ("district judge" or "magistrate judge"
or "chief judge" or "district court judge") and date(geq (01/01/2009) and leq
(12/31/2012))
In all, the database included 606 district court cases from every federal circuit, except the
District of Columbia (which had no relevant published decisions during these three years).
Each case was reviewed to determine its outcome (i.e., affirmance, remand, or reversal). The
results of this analysis are presented in Tables 13 and 14 below.
Table 13: Outcomes of District Court Cases Applying SSR 06-03p, By Circuit (2009-12)
100.0%

Percentage of Cases

90.0%
80.0%
70.0%
60.0%
50.0%
40.0%
30.0%
20.0%
10.0%
0.0%
1st

2nd

3rd

4th

5th

6th

7th

8th

Federal Circuits
Avg Affirm %

Avg Reverse/Remand %

(Note: Vertical bars indicate one standard deviation.)

A-33

9th

10th

11th

All

APPENDIX H: FEDERAL JUDICIAL APPLICATION OF SSR-06-03P (CON’T)

Table 14: Annual Number of District Court Cases Applying SSR 06-03p, By Circuit
(2009-12)
70

Number of Cases

60
50
40

Totals (2009)
Totals (2010)

30

Totals (2011)
20

Totals (2012)

10
0
1st

2nd

3rd

4th

5th

6th

7th

Judicial Circuit

A-34

8th

9th

10th

11th

APPENDIX I: SUMMARY OF STATE STANDARDS FOR NPS, PAS, & LCSWS
The tables in this appendix were developed using publicly available information
posted on the Internet by relevant professional organizations and secondary sources listed
below:
RESOURCES
NURSE PRACTITIONERS
Professional/Educational Organizations
 American Association of Nurse Practitioners (www.aanp.org)
 National Nursing Centers Consortium (www.nncc.us)
 American Nurses Credentialing Center (www.nursecredentialing.org)
 National Council of State Boards of Nursing (www.ncsbn.org)
 American Association of Colleges of Nursing (www.aacn.edu)
 American Nurses Credentialing Center (www.nursecredentialing.org)
Secondary Sources (Reports/Articles/Studies)
 Institute of Medicine, National Academy of Science, The Future of Nursing: Leading
Change, Advancing Health (2011)
 Kaiser Family Foundation, Nurse Practitioner Prescribing Authority and Physician
Supervision Requirements for Diagnosis and Treatment (2011)
(http://www.statehealthfacts.org)
 Kaiser Commission on Medicaid and the Uninsured, Improving Access to Adult Primary Care
in Medicaid: Exploring the Potential Role of Nurse Practitioners and Physicians Assistants
(2011)
 National Health Policy Forum, Tapping the Potential of the Health Care Workforce: Scopeof-Practice and Payment Policies for Advanced Practice Nurses and Physicians Assistants
(Background Paper No. 76) (July 2010)
 Ann Ritter and Tine Hansen-Turton, The Primary Care Paradigm Shift, 20 Health Lawyer 21
(April 2008)
 Center for Health Professions, Univ. of Calif., San Francisco, Overview of Nurse Practitioner
Scopes of Practice in the United States (2007)
PHYSICIAN ASSISTANTS
Professional Organizations
 American Academy of Physician Assistants (www.aapa.org)
 National Commission on Certification of Physician Assistants (www.nccpa.net)
 Association of Family Practice Physicians Assistants (www.afppa.org)
 Accreditation Review Commission on Education for the Physician Assistant
(www.arc-pa.org)
Secondary Sources (Reports/Articles/Studies)
 National Health Policy Forum, Tapping the Potential of the Health Care Workforce: Scopeof-Practice and Payment Policies for Advanced Practice Nurses and Physicians Assistants
(Background Paper No. 76) (July 2010)
LICENSED CLINICAL SOCIAL WORKERS
Professional Organizations
 Association of Social Work Boards (www.aswb.org)
 National Association of Social Workers (www.naswdc.org)

A-35

APPENDIX I: SUMMARY OF STATE STANDARDS FOR NPS, PAS, & LCSWS (CON’T)
Table 15: State Licensing Standards for NPs, PAs, and LCSWs

NP

Education

Clinical Requirements

Examination

Post-Graduate Nursing Degree
from Accredited Program
(Master’s degree, Post-Master’s
certificate, or DNP)

500 hrs of clinical practice

National Exam

[50 states & DC]

[50 states & DC]

Continuing Education &
Renewal/Recertification
CE: Professional development
requirements and 5,000 practice hrs
or renewal exam
Renewal: Every 5 yrs

[50 states & DC]
Graduation from Accredited PA
Programa

PA

2,000 hrs of clinical rotations

National Exam (PANCE)

[50 states & DC]

[50 states & DC]

[50 states & DC]

LCSW

[50 states & DC]
CE: 100 hours every 2 yrs
Renewal: Every 6 yrs
[50 states & DC]

Post-Graduate Social Work Degree
(MSW or PhD)

2 - 4 years of supervised postgraduate clinical practice

[50 states & DC, USVI, PR]

[50 states & DC, USVI, PR]b

National Exam (Clinical or Advanced
Generalist)
[49 states & DC, USVI, PR)
State Exam (CA)c

CE: 20 - 40 hours (avg.)
[47 states & DC, USVI, PR]
Renewal: Every 1-3 yrs
[50 states & DC, USVI, PR]

a

There are currently 170 accredited PA programs nationally. Most PA programs award some form of master’s degree (e.g., Master of Science in Medicine (“MMSc”), Master of Physician
Assistant Studies (“MPAS”), Master of Health Science (“MHS”), or Master of Clinical Medical Science). PA education is modeled on the medical school curriculum, with an average length of
27 months.
See http:www.aapa.org; http://arc-pa.org/acc_programs/.
Some states also impose additional
educational requirements for
licensure.
See
https://www.aapa.org/uploadedFiles/content/ Your_PA_ Career/Licensing_and_Certification/Resource_Items/Requirements%20for%20Licensure%20_Summary%20Chart_%2011-22-11.pdf.
b

Colorado requires two years supervised post-graduate clinical experience for certification as an Advanced-Generalist LCSW, and one year of such clinical experience for Clinical certification.

c

Currently, in California, clinical social workers must pass written and clinical vignette examinations administered by the state Board of Behavioral Services for licensure. However, recent
legislation modified the state-administered examinations. As of January 1, 2014, the state-administered examinations for LCSWs will consist of a separate law and ethics examination (to be
taken while the LCSW candidate during his or her supervised clinical work experience) and a clinical examination (to be taken after completion of all supervised work experience). See
http://www.bbs.ca.gov/bd_activity/legarchive_12.shtml (last visited Feb. 1, 2013).

A-36

APPENDIX I: SUMMARY OF STATE STANDARDS FOR NPS, PAS, & LCSWS (CON’T)
Table 16: State Scope of Practice Standards for NPs
Independent
Practice
Permitted?

Oversight Requirements

Yes

None

Practice Authorities (Diagnosis &
Treatment)

Prescriptive
Authority
Yes

[18 states & DC]a
No [8 states]

Prescription oversight only (9 states)c

No [24 states]

Oversight by physician or other specified medical professional
via collaboration, delegation, or supervision; typically need not
be on-site (e.g., telephone or email availability, review of
specified percentage of charts) (24 states)d

Take medical histories and conduct physical
examinations; diagnose and treat illnesses; order and
interpret tests; make referrals to other health care
providers; counsel on preventive health careb

NP

Yes

Yes

a

States that permit NPs to practice autonomously without protocols for supervision or collaboration with a physician or other medical professional are: AK, AZ, CO, HI, ID, IA, ME, MD, MT,
ND, NH, NM, OR, RI, UT, VT, WA, WY, and the District of Columbia. See Kaiser Family Foundation, Nurse Practitioner Prescribing Authority and Physician Supervision Requirements for
Diagnosis and Treatment (2011), available at http://www.statehealthfacts.org/comparetable.jsp?ind=890&cat =8&sub=103&yr=200&typ=5&rgnhl=41#notes-1; AANP, 2013 Nurse Practitioner
State Practice Environment, http://www.aanp.org/legislation-regulation/state-practice-environment (last visited Feb. 1, 2013); NNCC, NNCC’s State-by-State Guide to Regulations Regarding
Nurse Practitioner and Physician Practice, http://www.nncc.us/site/images/pdf/final%20-%20nncc%20guide%20to%20np%20practice%20regulations%2010-2011.pdf (last visited Feb. 1,
2013); see also National Council of State Boards of Nursing, Consensus Model for APRN Regulation: Licensure, Accreditation, Certification & Education, NCSBN’s APRN Campaign for
Consensus: State Progress toward Uniformity, https://www.ncsbn.org/2567.htm (last visited Feb. 1, 2013) (maps of implementation status of 2008 APRN model rules).
b

These are the NP practice authorities relating to diagnosis and treatment for the vast majority of states. For nuances in particular states, see, e.g., AANP & NNCC websites listed above. See
supra note a.
c

NP prescription oversight required in AR, KY, MA, MI, NJ, OK, TN, and WV. See id.

d

These states are: AL, CA, CO, DE, FL, GA, IL, IN, KA, LA, MN, MS, MO, NE, NV, NY, NC, OH, PA, SC, SD, TX, and VA. With a few exceptions, (i.e., CT, IN, MN, and PA), these
states also require some form of written agreement. See id. Only 7 states require on-site physician oversight or supervision, and, even in these states, the on-site presence is minimal (e.g., once
per month, 10% of NP’s practice time). See Ann Ritter and Tine Hansen-Turton, The Primary Care Paradigm Shift, 20 HEALTH LAWYER 21, 25 & Tbl.1 (April 2008).

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APPENDIX I: SUMMARY OF STATE STANDARDS FOR NPS, PAS, & LCSWS (CON’T)
Table 17: State Scope of Practice Standards for PAs & LCSWs
Independent
Practice
Permitted?
No

PA

Yes c

LCSW

Oversight Requirements

Practice Authorities (Diagnosis & Treatment)

Oversight required by physician or other specified
medical professional (such as osteopath), but
supervision/collaboration typically need not be onsite (e.g., telephone or email availability, review of
specified percentage of charts)a

Take medical histories and conduct physical examinations;
diagnose and treat illnesses; order and interpret tests; assist in
surgery and perform other procedures; counsel on preventive
health care; make rounds in hospitals and nursing homes b

No

Assess, diagnose, and treat of mental, emotional, cognitive,
behavioral, and psychiatric disorders; provision of psychotherapy
or counseling services; crisis intervention; case management

Prescriptive
Authority
Yes
[50 states & DC,
Guam, NMI]

No

[50 states & DC, USVI, PR]

a

For
a
summary
of
the
state
laws
and
regulations
governing
physician
assistants’
scope
of
practice,
see
http://www.aapa.org/
the_pa_profession/federal_and_state_affairs/resources/item.aspx?id=755. A typical scope of practice standard provides, for example: “Practice by PAs means performance, in collaboration
with licensed physician or osteopath, of acts of medical diagnosis and treatment, prescription, preventive health care and other functions authorized by the Board of Medicine. “ D.C. CODE
ANN. § 3-1201.02(13).
b

Some states also require written documentation of PA’s scope of practice outlining his or her role within a particular medical practice. For example, under Vermont law “[i]t s the obligation of
each PA/supervising physician team to insure that written scope of practice submitted to board for approval clearly delineates role of PA in medical practice.” 13-141-001 VT. CODE R. §5.1.
c

While the vast majority of state regulations use the term “licensed clinical social workers,” a handful of states use other references, such as “licensed certified social worker” or “licensed
master clinical social worker-master.” See https://www.datapathdesign.com/ASWB/Laws/Prod/cgi-bin/LawWebRpts2DLL.dll/EXEC/1/0f7wpke0xq6rjw1agtd0r08knxtg. Additionally, some
states impose additional licensing, continuing education, or other requirements for independent clinical social work practice. Id.

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