By Amber Williams, Attorney Advisor*

On September 9, 2016, the Social Security Administration (SSA) issued a Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding “Revisions to Rules Regarding the Evaluation of Medical Evidence.”  According to the NPRM, SSA, among other things, is “proposing a number of revisions to [] medical source and opinion evidence regulations.”

The NPRM, in significant part, relies on a report issued in the spring of 2013 by the Office of the Chairman of the Administrative Conference of the United States (ACUS) examining how to value certain medical sources and evaluate medical source opinions, entitled SSA Disability Benefits Programs: Assessing the Efficacy of the Treating Physician Rule.  This report formed the basis for Recommendation 2013-1, Improving Consistency in Social Security Disability Adjudications.  Recognition is also due to ACUS Senior Fellow Richard Pierce, who petitioned SSA to rescind the treating source rule.

“Acceptable medical sources” are experts who provide evidence about a claimant’s impairments, including physicians, psychologists, optometrists, podiatrists, and qualified speech-language pathologists.  Medical professionals such as nurse practitioners, physicians’ assistants, and licensed clinical social workers, though more likely than physicians to provide primary care in rural areas, are not included in the list of acceptable medical sources.  The NPRM, in accordance with the ACUS report, proposes to add Advanced Practice Registered Nurses, including nurse practitioners, as acceptable medical sources and calls for comments about whether physicians’ assistants, licensed clinical social workers, and other medical professionals should be added.

Under the current rules, a treating source’s medical opinion about the nature and severity of a claimant’s impairment is entitled to controlling weight.  However, this “treating source rule” has become obsolete for several reasons: (1) claims contain evidence from many medical sources and each source may express several medical opinions, (2) federal courts are weighing the evidence anew rather than applying the substantial evidence standard of review to the agency’s decision, and (3) it is difficult—even impossible—to determine treating source status due to the changing nature of the primary healthcare system.  The NPRM, again in accordance with the ACUS report, proposes to replace the treating source rule with a multi-factor test to determine how to consider medical opinions, including supportability of the medical source’s opinion by objective medical evidence, consistency with evidence from other medical sources, relationship with the claimant, specialization in the area upon which the source is opining, familiarity with the entire record, understanding of SSA policy, and any other relevant factors.

Comments on the proposed rule are due no later than November 8, 2016, and may be submitted via Internet, fax, or mail. (see the Federal Register Notice for instructions on how to submit comments via these three media).

*The opinions and views expressed are those of the author and do not necessarily reflect those of the members of the Conference or its committees, except where formal recommendations of the Conference are cited.