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Elimination of "Treating Source Rule" to Require New Approaches to Protect Claimants Wrong

For year after year, the number one reason that cases have been remanded from federal court to the Social Security Administration has been failure to follow the "Treating Source" rule, also known as the treating physician rule. Claimants' treating sources were opining that the claimants' conditions limited them in specific ways that made them disabled, and the Social Security Administration (SSA) judges were not giving these treating sources the due deference that the SSA's own rules required. But for applications filed on or after March 27, 2017, the SSA's rules and regulations no longer make any reference whatsoever to "treating source." Less than a year has passed since this rule change has applied to new applications, so most such denials have not yet reached federal court.

The rules and regulations have changed, but the Act has not. To the extent 42 U.S.C. 405(a) is violated, for example, case by case battles will succeed. Likewise, the new rules have their own nuances, and emphasize persuasiveness based on supportability and consistency. But these very things intuitively also supported the rationale for the treating physician rule. Bottom line: Approaches to fighting these cases will need to change somewhat, but if your or your client's treating physician is disregarded by the SSA in evaluating a disability claim, the reasons to fight it are as great as ever.

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