MLIVE’S ASK THE ATTORNEY COLUMN

Q. My treating doctor recognizes I am unable to work anymore and told me to apply for Disability. I did apply, but was turned down. Shouldn’t her opinion have mattered? (Dec 2016)

A. Since the Social Security Disability program was enacted in the 1950’s, the courts and Social Security have recognized that the opinions of a treating physician regarding a patient’s functional abilities and limitations are to be given significant weight in the consideration of disability claim. The current rule provides that more weight, and sometimes “controlling weight,” be given to opinions from a claimant’s treating doctors because they are “most able to provide a detailed, longitudinal picture of a claimant’s medical impairments.” The more well-supported the treating doctor’s opinion is, consistent with other evidence in the record, and the more qualified the treating physician is in treating the disabling condition, the greater weight Social Security will give to that opinion. However, Social Security has recently announced a proposal to abolish this rule. 81 Fed Reg 62559. It proposes instead that the second-hand opinions of medical consultants who never even meet or examine you be given equal weight. Social Security claims treating physicians are less familiar with their patients’ medical situation than they used to be, and that Social Security is too busy to give reasons for considering treating doctors’ opinions because the medical records it receives has become too voluminous. (In 2015, Social Security created this problem when it implemented an “all evidence” rule, insisting that claimants purchase and produce all relevant evidence from the claimants’ treating sources, resulting in significantly larger claims files.) As many in Congress have argued, if Social Security makes this change, “the public can have no confidence that all evidence will be fairly considered,” and it will give decisionmakers “too much individual discretion to dismiss key evidence without providing a rationale.” Everyone who has paid payroll taxes at work deserves an accountable Social Security system that pays benefits when compelling evidence is submitted. Feel free to call me to discuss your individual situation, and your rights of appeal.

–Attorney Robert MacDonald

P.S.  The Republican Congress has since allowed this new rule to go into effect.