New Opinion Weighing

Thursday, December 26th, 2019

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.

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