Medical Persuasiveness

Thursday, July 4th, 2019

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.

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