New Opinion Weighing

The Social Security Administration hopes that eliminating the treating physician rule will substantially reduce the number of disability applications that get approved. 

We represent a 44 year old former mail carrier from Seaford.  She was referred to us by her sister-in-law, a former client whose Social Security Disability (“SSD”) benefits were approved a few years ago.  The mail carrier was looking for a SSD attorney on Long Island.  Her back problem was well supported by objective medical data.  However, it was not until a few days after the claimant’s hearing that we finally were able to provide a report assessing her functional limitations from her orthopedist. This case illustrates how at least one administrative law judge (“ALJ”) weighs medical opinions under the new rules. 

The ALJ found the claimant disabled by finding the opinion of the orthopedist and the medical expert (“ME”) persuasive. The ALJ found the orthopedist persuasive because he personally examined the claimant over an extended period of time, his functional assessment was very recent, and the assessment was corroborated by the ME. The ALJ found the ME persuasive because he had full access to the claimant’s medical history. 

While the ALJ found personal examinations, length of treatment, and reviewing all medical records to be important, he did not indicate which were more important. Since both the orthopedist and ME concluded the claimant lacked a sedentary work capacity, the ALJ did not need to say whether he found the orthopedist or the ME more persuasive. There was no indication if personal examinations and the length of treatment was more important than reviewing all the records. 

Had the ME’s opinion contradicted the orthopedist’s opinion, it is possible that the ALJ would have found the ME more persuasive. It seems advisable that when treating sources are asked to provide functional limitations, they should also be given all medical records to review, which should be reflected in their assessments. 

Listing

Meeting a “listing” is one way to establish entitlement to Social Security Disability (“SSD”) benefits. Frequently, all the criteria of a listing may apply to a claimant, but the treatment records may not reflect each criterion. Recognizing the potential applicability of a particular listing, and that some criteria are absent from the treatment records can be overcome. 

I represent a 42 year old graphic designer from Long Island with various back problems. While he received extensive treatment for his back, including lumbar surgery and MRI testing, the records did not reflect that he always met all of the listing criteria. Therefore, we tailored forms for the claimant’s spine specialist to complete that addressed the criteria for listing 1.04, and the response revealed that the claimant did in fact satisfy each element. 

At the hearing, a medical expert (“ME”) testified that the claimant met listing 1.04. Moreover, the ME testified that even if the claimant did not meet or equal the listing, the medical evidence, including the spine specialist’s report, reflected the inability to perform sedentary work. Since the claimant was 42 years old, without the responses to the form we prepared for the spine specialist, the claimant probably would have been denied SSD benefits.  This is another example of why it is so important to retain an attorney who specializes in SSD claims.  If you are thinking about applying for SSD benefits, please contact my office for a free phone consultation. We have offices that are conveniently located in both Nassau and Suffolk counties on Long Island. 

Peripheral Arterial Disease

Peripheral Arterial Disease (“PAD”) is a circulatory problem in which narrowed arteries reduce blood flow to your limbs. According to the Mayo Clinic, the lack of blood flow causes pain, numbness and cramping that is triggered by activity.  And according to the American Heart Association, people with diabetes are especially at high risk for PAD.

Diabetes induced PAD creates a Catch-22.  Elevating the legs is advised for diabetics who have painful or swollen feet.  However, elevating the legs can exacerbate leg pain for PADS patients.  I represent a claimant with diabetes induced PAD whose Social Security Disability (“SSD”) case was approved today in large part because of the Catch-22. 

While my claimant had an extensive work history, the administrative law judge (“ALJ”) wanted to know primarily why the claimant could not work.  I explained that the claimant’s legs and feet were always painful.  Her endocrinologist wanted the claimant to elevate her feet when sitting, which the vocational expert said precluded work.  The claimant’s cardiologist wanted the claimant to rest because of the PAD, but noted that elevating her legs could cause pain, and in fact, the claimant’s leg pain was worse when lying down at night, resulting in very poor sleep.  The ALJ noted the sleep deprivation provided additional grounds that supported the claimant being off task and unable to work.

The claimant was referred to me by her husband, who was a previous client of mine, and whose claim was also approved.  As he was happy with the outcome of his claim, it was an obvious decision to refer his wife to me, and he knew that my expertise as a Social Security Disability attorney would produce the same outcome for his wife.  My Long Island office in Nassau County was also convenient for him and his wife, although because of their disabilities, we were able to accommodate their not having to visit the office in person.

LTD Doctor Scam

I have been a disability attorney on Long Island for two decades, and in that time, there has been no improvement in the way Long Term Disability (LTD) Insurance companies process their claims. Their bottom line is profit, and denying hundreds of thousands of claims that qualify for approval. One of the major tactics disability insurers use is hiring doctors, who failed to succeed in their medical practices. Disability insurers essentially pay these failed doctors to fabricate excuses to deny insureds their LTD benefits, without even performing an examination. Only an attorney who specializes in Disability Law can help you fight these insurance companies, and win.

COLA

Social Security recently announced a 1.6% cost of living adjustment for recipients of SSD and SSI benefits. The adjustment goes into affect in January, but in December you can see how much the dollar increase will be by logging onto your account at ssa.gov.

If you are not receiving benefits but are thinking about applying, you should consider hiring an attorney who specializes in disability. Please do not hesitate to contact my office staff for a free phone consultation. We are locating on Long Island with offices in Nassau and Suffolk counties.

Exhaustive Hospital Records

When a medical expert (“ME”) testifies at a Social Security hearing, the testimony is usually adverse to finding the claimant disabled. Apparently, one way to increase the likelihood that an ME will testify favorably is to provide a copy of all the hospitalization records. Within the last month, I had two different MEs say the evidence supported finding the claimants disabled based upon the voluminous hospitalization records. 

The cases were completely different. One involved Social Security Disability (“SSD”) benefits for an adult with various musculoskeletal problems, while the other concerned Child’s Insurance Benefits (“CIB”) for a claimant with interstitial cystitis. There were thousands of pages of hospital records, and just today, about another thousand were received in the CIB case after the fully favorable decision was received. The ME in the adult case admitted that he did not read all the records. 

There are listings that apply where a claimant has been hospitalized a certain number of times during a fixed period of time, but neither of the MEs testified as much. I suspect that the MEs equate hospitalizations with the severity of a medical impairment. Obtaining hospital records are usually more difficult to obtain in a timely manner compared to treating doctors’ records. However, even if most of the documentation may not contain much information pertinent to the claimant’s disability application, the need for the hospitalization seems to impress an ME much more than progress notes.  

Both of these cases happened to be on Long Island, but in general, my office staff is very familiar with requesting medical records from the hospitals in the Metropolitan area including Nassau and Suffolk Counties, Queens, Brooklyn and Manhattan.  

If you find yourself in the position of needing to apply for SSD benefits, please call my office for a free phone consultation.  My staff and I will be able to assist you with any questions you might have.  Having a SSD attorney with years of experience and expertise handling your claim will make the process of applying for SSD much less stressful and overwhelming.

Expert Interrogatories

When an administrative law judge (“ALJ”) wants to deny a Social Security Disability (“SSD”) application after a hearing, but the evidence supports disability, the ALJ may send interrogatories to a medical expert (“ME”). If the interrogatories are adverse to the claimant, the ALJ must follow proffer procedures, and the claimant has the right to cross examine the ME. If the ALJ denies an application based on the interrogatories without proffering them, then the SSD claim will be remanded for further proceedings. 

Most of the time, ME interrogatory responses contradict the supporting opinions of the treating physicians. In those unusual situations where the opposite is true, and the ALJ intends to issue a fully favorable decision, the interrogatories do not need to be proffered. What happens if the ALJ tries to get a ME to retract an opinion that supports finding you disabled? 

I have a case where ALJ Donaghy received interrogatory responses from ME Rita Clark last March that corroborated the disability findings and opinions of the claimant’s psychiatrist and psychologist, and concluded that the claimant met a listing. The ALJ never proffered those responses, and refused to issue a fully favorable decision. Instead, last August, the ALJ resent the verbatim interrogatories, which even included the identical typos. 

The only ostensible reasons to resend the identical interrogatories was the ALJ’s hope that Dr. Clark would change her responses for some reason. However, that did not happen. In fact, Dr. Clark reinforced her prior interrogatories responses as additional evidence in the eFolder that supported her opinion. 

The three mental health providers who had been treating the claimant since 2009 each concluded that the claimant became disabled before 2010. Despite the fact that the unanimous consensus was that the claimant has been disabled since before 2010, the ALJ decided to ignore all of their opinions, and to ask ME Clark when the claimant became disabled. 

The fourth interrogatory asked: 

if you have sufficient information to form an opinion within a reasonable degree of medical or psychological probability as to past limitations, on what date were the limitations you found first present? 

The question you posed was not the least bit ambiguous or confusing. In fact, to make sure that there was absolutely no misunderstanding the interrogatory, the ALJ’s letter to ME Clark stated: “Please note that the relevant period for this opinion is 12/14/04 – 12/31/10.” To make matters even clearer for Dr. Clark, if that were even possible, the ALJ italicized and bolded her statement, so that Dr. Clark could not conceivably misunderstand the request. And ME Clark did not. 

Dr. Clark agreed with the conclusions of the three treating sources. In no uncertain terms, in response to the fourth interrogatory, Dr. Clark stated that the claimant has been disabled since April 6, 2009. However, just as the ALJ was unwilling to accept the opinions of the three treating sources that the claimant became disabled during the relevant period, she was unwilling to accept that Dr. Clark concurred with them, even though the fourth interrogatory and answer were perfectly clear. 

I sent the ALJ a letter stating that the “new” interrogatories asked exactly what the fourth interrogatory previously asked, and that the ALJ neglected to explain for the record why she believed it was necessary to ask Dr. Clark the same thing again, other than to get her to change her answer to create an excuse to reject the opinions of the three treating sources. Nonetheless, the ALJ still refused to decide the claimant’s application. Only after a letter recounting the facts was sent to the Division of Quality Service did the ALJ finally approve the claimant’s SSD benefits.

We let the claimant know today that he was approved.  He had initially filed his application on his own, and decided to retain us after his claim was initially denied.  He believed his application would have been denied again if not for our help.  Although the claimant resides in Rego Park, Queens, a friend of his who was a former client of mine, referred him to my office.  While I am a disability attorney with offices in Jericho and Melville on Long Island, I regularly do hearings in Queens.  Many of my clients do not reside in Nassau or Suffolk County.  Because of their disabilities, many clients, even those who live on Long Island, have difficulty coming to my offices.  Therefore, my staff and I make the process easy by collecting information by phone, email and fax to minimize their need to travel to my office.

Surveillance Report

I represent a 53 year old former auto body mechanic from Rego Park, Queens, with back and emotional impairments whose Social Security Disability (“SSD”) application was approved today without a hearing. What made this case interesting was that the file, more specifically, the medical evidence “F” section of the eFolder, included a surveillance report from the Cooperative Disability Investigations (“CDI”) Unit of the Social Security Administration (“SSA”). 

According to the SSA Office of the Inspector General, the CDI Units investigate disability claims under SSA’s Title II and Title XVI programs that State disability examiners believe are suspicious. The CDI program’s primary mission is to “obtain evidence that can resolve questions of fraud before benefits are ever paid.” 

The eFolder contained no explanation why the State disability examiners would believe the claimant’s application was suspicious. Nor did the eFolder provide any basis for suspecting the claimant was engaging in fraudulent activity. Consequently, pursuant to a Social Security regulation and HALLEX provision, I asked the administrative law judge (“ALJ”) to issue a subpoena to command the appearance of the author of the surveillance report, the production of the video recording taken during the investigation, and all documentation that purportedly justified the investigation. 

The ALJ approved the claimant’s SSD application the day before the hearing. It is unknown if requesting the subpoena played a role in the ALJ’s decision. If you would like to speak with a disability attorney about a CDI Unit report, feel free to call our office. If you live in Long Island, and have questions about a CDI report or disability matter, you can also meet at our offices.

SSD Approved in 2 Months

I represent a 52 year old former Cable Television maintenance worker with neck and back problems whose Social Security Disability (“SSD”) application was approved today after two months. Since SSD benefit approval rates have been decreasing, while decision-waiting times have been increasing, the question arises: what made this SSD claim different? 

The ostensible answer is “objective” evidence. Recent prior posts have discussed how Social Security has placed greater emphasis in the last couple of years on “objective evidence.” To the SSD adjudicators, objective evidence primarily means diagnostic tests. 

We submitted an unusually large number of MRI and EMG tests for the claimant, in addition to treatment records and disability assessments from treating physicians. This indicates that even thought the Social Security Administration has eliminated the treating physician rule, when the opinion of a claimant’s physician is accompanied by significant diagnostic testing, the opinion is likely to be accepted. 

This case involved a disability claimant from Long Island, and we have been able to obtain SSD benefits for many other disability claimants quickly compared to national averages.  For the convenience of our Long Island clients, and potential clients, we have offices in both Nassau and Suffolk county.

Unum Pays

I represent a plaintiff who sued Unum after it terminated her long term disability (“LTD”) benefits in the absence of any improvement in her medical condition. Unum rejected all of the opinions of my client’s doctors in favor of its in house doctors. 

Unum reinstated my clients LTD benefits right before trial, and then argued that the plaintiff was not entitled to attorney fees. Yesterday, not only did the court award attorney fees that were four times the amount of the wrongfully withheld LTD benefits, but the court also awarded paralegal fees, costs that included legal research charges, and $7,120.58 in prejudgment interest. 

Hopefully, this case will make Unum think twice about employing the same tactics in other cases.

Bipolar Disorder

According to Stanford Medicine, bipolar disorder is characterized by severe and disabling highs and lows that affects 2.2 million Americans. 

I represent a 55 year old former computer programmer from New Jersey whose Social Security Disability (“SSD”) application was approved yesterday without a hearing. The NJ State agency, which makes the initial decision on SSD application, requested the records from each treating source. We provided extensive detailed treatment records and functional assessments from the claimant’s psychiatrist, neurologist, and internist. 

While the SSD application was approved, the State agency is holding up benefits until a representative payee is authorized for the claimant. It is always advisable to have a representative payee in mind when seeking SSD benefits when the claim is based on bipolar disorder.

“Reserved” to the Commissioner

Time and time again, administrative law judges (“ALJs”) invoke the mantra that determining the issue of disability is an issue that is reserved to the Commissioner when deciding Social Security Disability (“SSD”) claims. While that statement is correct, ALJs invariably apply it incorrectly. 

It is true that a treating physician’s legal assertion that a claimant is disabled is not entitled to any special significance. However, the case law is clear that the same cannot be said about a treating physician’s medical assessment of the claimant’s limitations. The case law holds that a physician’s opinions regarding a claimant’s capacity to sit, lift, and stand for example, are in no way legal conclusions reserved to the Commissioner because they are not an opinion on the issue of legal disability, but on the nature and severity of the claimant’s impairments. 

The problem is that ALJs invoke their “reserved” mantra as a basis to reject the limitations of a physician. That is a misapplication of the law. I received a decision today where the ALJ did just that. However, as the ALJ still issued a fully favorable decision, it will not need to be appealed.

SSD Approved in 4 Months

Currently, it takes about 27 months for the typical Social Security Disability (“SSD”) application to be approved. The average waiting time for a hearing is 18 months. So what leads to an SSD claim getting approved in only four months? 

I represent a 59 year old nursing assistant with neck, back and shoulder problems, whose SSD application was approved today without a hearing or need for consultative examination. The claimant’s impairments were severe, but similar to that of other claimants, whose SSD applications were initially denied. What was different about this claim? The likely answer is the way we described the claimant’s occupation. 

The claimant advised us that she was a nurse. When obtaining additional information to prepare the application, it became clear that the claimant’s occupation was actually that of an assistant nurse. While the distinction may make little difference to many people, and the positions are considered equally demanding from a physical perspective, a nursing assistant is considered to have a lower skill level. 

Vocational experts (“VEs”) have testified that nursing assistants do not have transferable skills to sedentary work. Therefore, under the Social Security “grid” rules, the claimant would be found disabled even if capable of sedentary work. On the other hand, some VEs have testified that nurses have transferable skills to sedentary work. 

Had her application simply listed the generic title of nurse for the claimant, then the claimant would have been denied. This claimant knew it was important to hire a SS attorney rather than applying for disability on her own.  This is just of an example of why it is important to do so, as she is very happy with the results.

Videotaping IMA

When applying for Social Security Disability (“SSD”) in New York, Industrial Medicine Associates (“IMA”) has been performing the consultative examinations (“CEs”) for the State agency for many years now. One of the reasons to videotape IMA CEs is to preserve first hand evidence.  As an SSD attorney, I advise all of my clients to videotape their CEs for this very reason.

I represent a 23 year old former clerical assistant with rheumatoid arthritis and a knee injury. An administrative law judge (“ALJ”) approved her SSD application today, which would have been denied if the IMA CE had not been videotaped. 

The State agency initially denied the claim by disregarding everything the treating specialist concluded, and by having its doctor, Verdella Cincore, claim that the IMA CE report showed the claimant was not disabled. 

According to the New York State Department of Health, Cincore is an ob/gyn, who lacks any board certification. The American Board of Medical Specialties also confirmed that there is no physician named Cincore in the United States who is board certified in any field of medicine. Dozens of websites, including Good Samaritan Hospital, Healthgrades, Doximity, Zoddoc, NPI, HIPAASpace, Medcarelist, all state that Cincore holds herself out as an ob/gyn. According to medicinenet.com, “OB is short for obstetrics or for an obstetrician, a physician who delivers babies. GYN is short for gynecology or for a gynecologist, a physician who specializes in treating diseases of the female reproductive organ.” It should be obvious that an ob/gyn is not the appropriate specialist to evaluate the claimant’s impairments, which have absolutely nothing to do with delivering babies or the female reproductive organ. 

The IMA doctor diagnosed the claimant with complex regional pain syndrome, rheumatoid arthritis, and hypothyroidism, which he wrote resulted in “Moderate to marked restrictions with walking, climbing, kneeling, squatting, bending, and prolonged standing.” However, the videotape of the CE revealed the IMA doctor unambiguously stating that the claimant should get disability benefits, and that it would be unreasonable if she did not get SSD benefits. In the absence of that videotape, the ALJ would have stated that the IMA doctor concluded the claimant could perform sedentary work, and would have denied the SSD application.

Frontal Lobe Syndrome

The frontal lobe of the brain plays a key role in higher mental functions such as motivation, planning, social behavior, and speech production. According to Wikipedia, frontal lobe disorder is an impairment of the frontal lobe that occurs due to disease or head trauma. 

I represent a 46 year old former librarian with frontal lobe syndrome, which developed from brain abscesses from botched surgery, in connection with her NYSLRS disability retirement application. The claimant suffers from headaches, fatigue, depression and a host of other behavioral changes. The cognitive deficits were confirmed by an independent neurological examination that was performed in connection with a medical malpractice action, as well as the NYSLRS independent psychiatric examination.

It took NYSLRS over 2.5 years to determine that the claimant is permanently incapacitated from performing the duties of her job, which is a typical processing time. Once again, I believe the key was supplying NYSLRS with a vocational evaluation that provided a nexus between the claimant’s functional limitations and occupational duties.

Fahr’s Syndrome

Fahr’s Syndrome is a rare, genetically inherited neurological disorder that is characterized by abnormal deposits of calcium in areas of the brain that control movement, including the basal ganglia and the cerebral cortex. I represent a 40 year old former IRS representative with Fahr’s Syndrome whose Social Security Disability (“SSD”) application was approved today after the ALJ found that listing 11.06 was met. 

Because Fahr’s Syndrome is rare, I submitted medical treatise information from the Internet describing the condition, including its symptoms. During the hearing, the medical expert (“ME”) stated that he found the information very helpful, and testified that the claimant’s condition was like Parkinsonian syndrome, and its severity met listing 11.06. The ALJ agreed and issued a fully favorable decision today. 

Claimants with rare medical conditions are frequently denied SSD benefits because their impairments are misunderstood. A SSD attorney should always submit reliably sourced medical information regarding unusual medical impairments, especially one that describes the common symptoms.

Initial SSD Approved

Approval rates for Social Security Disability (“SSD”) applications continue to decline, and will continue to do so as the Social Security Administration continues to enact regulations that increase the evidentiary burden for claimants. One strategy may be to bury the State agency with paper. 

I represent a 52 year old former OB/GYN with neck and mental impairments, whose SSD application was approved today. We had submitted objective diagnostic test results and disability opinion evaluations, and the State agency responded by insisting that the claimant attend a consultative examination. However, after submitting over 800 pages of medical records, regardless of their relevance to the claimant’s impairments, the SSD application was approved. 

I have had judges and State agency analysts complain about the “paucity” of medical records in a file, even when they are highly relevant. It is as if there is an unwritten rule that a quantity minimum exists, but such a rule that promotes form over substance makes no sense. For example, if a diagnostic test reveals metastatic cancer, there is no need for additional medical evidence. 

There are many unwritten rules in the SSD process. Another example is that while the law explicitly precludes an ALJ from relying on a “sit and squirm test,” ALJ’s frequently hold hearings simply to see what a claimant looks like. In response to cases where I had submitted very strong evidence, I have even had ALJ say that they just wanted to see the claimant. Bottom line is that unwritten rules exist, and that includes a perception that a claim must be supported with significant amount of documentation, regardless of its relevance. This is another example of why it is so important to retain a Social Security attorney when applying for SSD benefits.

Inconsistent, But Favorable Decision

I represent a 56 year old claimant with intellectual disabilities, who threw out garbage and shoveled snow for New York State. The claimant stopped working because he was unable to remember even simple, recurrent things. His former co-worker had always helped him by telling what to do because he forgot things, but that co-worker passed away. 

The State determined that the claimant was unable to perform his work duties, and awarded him a disability pension. The claimant then went for a two day cognitive evaluation at Hofstra University to evaluate his ability to work. In a highly detailed 25 page, single spaced report, the Hofstra psychologist conducted objective testing that revealed the claimant had a Full Scale IQ of 58. 

A second psychologist from Hofstra confirmed that the claimant met all the criteria of the listing for intellectual disability. That report showed that the claimant cannot subtract, multiply, or divide, and can only add up to ten using his fingers. We also obtained an opinion from the psychologist that requested opinions regarding mental limitations using vocationally familiar terms, which included being off task. The psychologist determined that the claimant would be off task at least 20% of the time. The Social Security consultative examiner’s report confirmed that the claimant cannot perform simple calculations, or count backwards. Based on a detailed neurological evaluation, another one of the claimant’s doctors, dual board certified in psychiatry and neurology and pain medicine, also concluded that the claimant was unable to work due to sleep apnea. 

ALJ Pellegrino rejected the mental limitations detailed in the Hofstra report, and therefore, the ALJ said that the claimant would not be disabled under the medical-vocational “Grid” rules. However, the ALJ said that because the second Hofstra psychologist said the claimant would be off task 20% of the time, he was disabled, and entitled to Social Security Disability benefits. The odd thing is that the ALJ rejected the cognitive limitations in the Hofstra report, but accepted the off task limitation as a result of the those limitations.

How Slow Is It?

No, not a comedian’s straight line, but rather a query regarding the deliberateness with which the Social Security Administration (“SSA”) processes claims.

Over a decade ago, on April 29, 2008, I asked administrative law judge (“ALJ”) Newton Greenberg, now deceased, to amend his fully favorable decision to correct the Social Security Disability (“SSD”) application filing date. The decision said the filing date was April 27, 2007. During the hearing, I pointed out that I had the certified mail receipt showing that I filed the claimant’s SSD application on February 19, 2007. The decision found the claimant became disabled on June 27, 2005. During the hearing, I also pointed out that, consistent with my certified mail receipt, Exhibit 2E in the claim file confirmed that February 19, 2007 was the date when I actually filed the SSD application.

At the end of the hearing, I gave the ALJ an application claim form that was mailed by a person from the SSA district office, with that person’s initials on it, and was dated July 27, 2006. Mailing that claim form showed that the SSA was advised that the claimant wanted to file for SSD benefits, which is grounds for a protective filing date. When the hearing ended, the ALJ said that he would investigate the mailing from the district office.

When I received the ALJ’s decision, there was no discussion at all about the incorrect onset date. It merely stated that the application was filed on April 27, 2007. Consequently, I immediately submitted a letter asking the ALJ to issue an amended decision to reflect the actual filing date. At a minimum, the hearing decision needed to be amended to reflect an application date of February 19, 2007.

However, I argued that the application I handed the ALJ provided substantial evidence for a protective filing date of July 27, 2006, which would provide another seven months of benefits beyond the February 19, 2007 date.

I received an answer to my request for an amended decision today – 11 years and 3 months later. A new decision that accepted August 2, 2006 as the protective filing date. No explanation why the July 27, 2006 date was rejected, but obtaining an additional seven months of benefits.

Medical Persuasiveness

Social Security Disability (“SSD”) applications filed after March 2017 are subject to the new regulations that exclude the treating physician rule. Rather than determining the amount of weight to accord medical opinions, the Social Security Administration (“SSA”) now determines which medical opinions are more persuasive. 

The regulations explain how persuasiveness should be measured, just as they had explained how weight was to be ascertained. And just as the courts repeatedly had to rule whether the proper weight was accorded to medical opinions, they will surely be asked to rule on whether the SSA properly determined the persuasiveness of medical opinions. 

I represent a 49 year old former carpenter with back problems, whose SSD application was approved after a hearing. The decision of the administrative law judge (“ALJ”) sheds some light on how persuasiveness will be determined, at least by this particular ALJ. 

The ALJ found the opinions of the treating orthopedist and the pain management doctor persuasive because they had treated the claimant frequently since 2011. Conversely, the ALJ found the opinion of the non-examining doctor less persuasive because it was inconsistent with the level of treatment the claimant received, and because he was not privy to all of the medical records.